1. ' SHAHID ANWAR BAJWA, J .--- F .I.R. No.9 of 2011 was registered by Police Station Abad on 26-1-2011 at 1455 hours for an incident alleged to have occurred on the same date. Complainant was one Ashraf Ali. He states that his party had dispute over land with the accused party and on the eventful morning when the complainant along with five relatives was going to his fields on his tractor, on the way he saw a group of 28 persons all stated to be armed with various fire arms.
2. Accused waylaid the tractor. Three accused persons, (none of the present applicants) are alleged to used abusive language and fired at Shahzado, Bachal and Muhbat. It is further stated in F.I.R.
3. That "other" accused made straight firing and firing continued for some time. It is further stated that another accused fired at Mst. Hakeeman which hit on her right leg and thereafter the accused by resorting aerial firing made their good escape. Three persons lost their lives and one lady was injured.
4. ' Mr. Manzoor Ahmed Junejo learned counsel for the applicant in Criminal Bail Application No.780 of 2011 submitted that Rabban was found innocent by police and his name was placed in column No.2. However the Judicial Magistrate ordered him to be joined as accused person and consequently he was arrested. Learned counsel next argued that case against him is at least of ineffective firing. He relied upon Ali Akbar v. The State (SBLR 2011 Sindh 1). Learned counsel next submitted that no recovery has been affected from his client and he relied upon Muhammad Murad and others v. The State (2009 SCM R 348).
5. ' Mr. Zulfiqar Ali Sangi learned counsel for the applicant in Criminal Bail Application No.277 of 2011 in addition to adopting arguments of Mr. Junejo submitted that it is alleged in the F.I.R. That the applicant was armed with gun. He submitted that no gun cartridge has been recovered and no pallet injury has been shown either in ocular evidence or in the post mortem report. He relied upon Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585) and Master Ghulam Muhammad and others v. The State (2010 M LD 877). Learned counsel also relied upon Masood v. The State (2010 PCr.LJ 600).
6. ' Mr. Zulfiqar Ali Jatoi learned D.P.-G. Vehemently opposed the bail application. He submitted that the present applicants have been named in F.I.R. And they had common intention. He relied upon Mamaras v. The State (PLD 2009 SC 385 ) and Shoukat Illahi v. Javed Iqbal 2010 SCM R 966. He further submitted that from the place of vardat 20 empties of G-3 and 15 empties of Kalshanikov have been recovered.
7. ' I have considered the submission made by the learned counsel and have gone through the record.
8. ' As far as contention of the learned counsel for applicant in Criminal Bail Application No.780 of 2011 that the police in its report placed the applicant in column No.2 and it is only the Judicial Magistrate which ordered the applicant to be joined as accused is concerned, suffice it to say that it is settled law that ipse dixit of police is not binding on Court at bail stage or even on final stage of the case. Therefore the fact that the applicant in Criminal Bail Application No.780 of 2011 was found innocent by the police is no way helps the case of the applicant. Reliance by learned counsel on Ali Akbar's case (Supra) is not very apt because one of the grounds which prevailed is that case that after protective bail, the applicant had voluntarily surrendered before the trial court.
9. ' Learned counsel for the applicant in Criminal Bail Application No.780 of 2011 next submitted that no recovery had been effected from the applicant. He relied upon Muhammad Murad's case (Supra).
10. The prosecution' story was that there was previous enmity and on fateful day the complainant's brother and son went to irrigate fields. As the complainant heard report of a fire-arm, he reached at the spot and in the moon light and torch light he saw 17 persons duly armed surrounding complainant's brother and son. One accused was alleged to have fired at brother of complainant and other accused person gave hatchet blows. Thereafter accused persons decamped and the Supreme Court observed as under:-- "6. The occurrence allegedly took place at 2-00 a.m. And 17 persons were accused in the F.I.R. The deceased received six injuries, out of which three were sharp-edged wounds whereas seven out of seventeen accused were armed with hatchets. Admittedly petitioners are neither connected with the motive part of the story nor were they attributed any specific injury to the deceased. Petitioners were declared innocent in three successive investigations including the one conducted by Range Crime, Multan.
7. In the afore-referred circumstances, the question of their guilt would require further enquiry.
11. Resultantly, this petition is converted into appeal and allowed. Petitioners are admitted to bail and shall be released subject to their furnishing bail bonds in the sum of Rs.2,00,000 with one surety each, in the like amount to the satisfaction of trial court."
12. ' In the present case, it, is claimed in the F.I.R. That complainant saw a group of 28 persons; three accused persons are alleged to have fired at the three deceased and another accused is alleged to have fired at the lady and injured. Out of the present two applicants, the applicant in Criminal Bail Application No.277 of 2011, is alleged to be armed with a gun, but no empty of a gun has been recovered and no gunshot wound is alleged to have been received by any of deceased or injured person. As far as applicant Rabban in Criminal Bail Application No.780 of 2011 is concerned he is alleged to have been armed with Kalashnikov. It is not alleged that he fired at any person either the injured or the deceased. All that is alleged is that he has fired in air along with others. In the F.I.R. 4 separate instances of firing are alleged. Firstly by three persons on three deceased; secondly by "other accused" on the deceased and it is stated that firing continued for some time; thirdly firing by one accused on. Mst. Hakeeman and fourthly by all persons while escaping. In the F.I.R. 14 persons are alleged to have been armed with Kalashnikovs and in spite of 4 separate instances of firing only 15 empties of Kalashnikov have been recovered. Learned counsel for applicant relied upon Muhammad Ramzan's case (Supra) where the accused person was alleged to have been armed with gun and medical evidence showed no gunshot injury and the bail had been granted by High Court and application for cancellation of bail was dismissed by the Supreme Court. In Ghulam Muhammad's case (Supra) it was observed that at the bail stage common intention is always subject to further enquiry, unless there was overwhelming evidence to the contrary.
13. ' Learned D.P.-G. Relied upon Mamaras's case (Supra) where a Suzuki Pick-up was ambushed by unknown assailants in which 9 persons had lost their lives and, five other persons received serious injuries. The facts are clearly distinguished from the present case where three persons have fired on three deceased and one person fired on injured Hakeeman, others are alleged to have made ineffective firing and firing in air. Shoukat Illahi's case (Supra) is on the plea of alibi and since plea of alibi is not claimed by any of learned counsel for the applicants the case is not really applicable to the present case. Learned counsel for applicant relied upon Masood's case it was decided by me. It was alleged that fire was directed at knee of injured person and no injury on vital part of lady was caused and that bail application was allowed. In the present case besides the fact that no injury is attributed to the any of the applicants in the presence of 14 Kalashnikovs with four separate instances of firing only 15 empties recovered which creates doubt and it is settled principle of law that benefit of doubt should be extended to the accused person.
14. ' Result of the above discussion is that these Criminal Bail Applications are allow and the applicants are ordered to be released on bail upon their executing P.R. Bond in the sum of Rs.300,000 (Rupees three Lac only) each with one solvent surety in the like amount each to the satisfaction of trial Court.