1. ' HABIB-UR-REHMAN SHAIKH, J.---By this order, I intend to dispose of above bail applications, as both are connected with each other and outcome from one F.I.R. Bearing F.I.R. No,301 of 2011, Police Station Shandadpur, lodged the complainant Naveed Arshad son of Arshad Ali Arain on 12-10-2011, at 0200 hours for an offence under sections 302., 324, 147, 148, 149, 403, 337-A(i), 337-F(ii), P.P.C.
2. ' The facts of the prosecution case in brief are that, the complainant has agricultural land in deh Shandadpur, wherein Banana crops are standing. On 10-10-2011, boys of Shahzad Pathan and Fawad Pathan cut down their Bananas, on which, dispute was arisen, and on the day of incident, the same was scheduled to be settled. It is further alleged that on the day of incident in the Banana cultivation, his Hari Qurban, his brother Ali Hassan, Ali Ahmed alias Rano and other inmates of the house were picking cotton from the land. At noon time the complainant, his father Arshad Ali, his brother Nadeem Arshad and Shakeel Arshad went to their land. His father having his licensed repeater, one thirty bore licensed pistol were with them, when they were available at the land, it was about 3-00 p.m. Accused namely Shahzad Pathan having repeater, Faward Pathan armed with pistol, Nawab having pistol, . Bhai Khan having rifle, Badshah Khan armed with gun, Mohiuddin with Country-made pistol, Darya Khan having lathi, Haider Khan with iron rod, Alam Khan with iron rod, Ali-Hassan having lathi, Amir Khan having Belcha, Jamal Khan with lathi and three unknown persons armed with lathis, who can be identified when seen, arrived there and straightaway fired upon the complainant party. They raised cries. Shahzad with repeater, Faward with his pistol fired upon the brother of the complainant Nadeem Arshad and Nawab with pistol and. Badshah Khan, fired upon the father of complainant Arshad Ali, which hit them and they fell down. The accused persons also robbed their respective weapons, mobile phones and CHIC. The complainant and haris tried to rescue them, the remaining accused with their respective weapons gave blows to them. His brother Shakeel Arshad, Qurban, Ali Hassan and Ali Ahmed alias Rano received the injuries on their face, head, arms and other parts of their body. Accused Mohiuddin and Yahya Khan also received the injuries. On the cries and voice of shots, Nisar Ahmed and Mukhtar Rashid reached there and on seeing them, the accused persons ran way while taking their injuries companions Mohiuddin and Yahya. Then complainant saw and found his brother Nadeem Arshad dead and, his father was seriously injured. They took their father and other injured persons towards taluka hospital Shandadpur, where SIP Dodo Khan of Police Station Shandadpur with his staff reached and the father of the complainant succumbed to his injuries. The SIP after legal formalities and after conducting the postmortem they brought the dead bodies at their house. The uncle of complainant Akbar also reached from Karachi. After narrating the facts to him, the complainant went to police station and lodged the report.
3. ' After usual investigation, police arrested the accused and submitted the challan before the Court of law.
4. ' Heard learned counsel for applicants, learned State Counsel as well as learned counsel for the complainant and perused the record.
5. ' The learned counsel for the applicants contended that enmity is admitted in the F.I.R. Further contended that the accused Shahzad with repeater and Fawad with pistol fired upon deceased Arshad, Nawab with pistol and Badshah Khan with guns fired upon the father of the complainant Arshad Ali and the role of the applicant shown in the F.I.R. Was not caused any injury to the deceased persons and their role assigned to cause the injuries to the P. Ws. And the allegation is general in nature. Moreover, the applicant Mohiuddin and Yahya Khan also received the injuries, and the F.I.R. Bearing Crime No,340 of 2011 was lodged by. Ajab Khan son of Lal Khan Pathan as a counter F.I.R., in which, clearly stated that the complainant party of the present case with their respective weapons attacked upon the accused party of the present case and injured Mohiuddin and Yahya Khan. In the above mentioned F.I.R. The incident was shown at 1430 hours on 11-10-2011 and the F.I.R. Has been lodged on 2-12-2011 at about 1930 hours, so from the both sides the F.I.Rs, have been lodged, but the police under the influence of the complainant party submitted the report before the Civil Judge and Judicial Magistrate for cancellation of the F.I.R. Lodged by accused side and the said F.I.R. Was cancelled by the order of the Magistrate. The sole allegation 'is against accused Shahzad, Fawad, Nawab and Badshah Khan. The case of the present applicants falls under sections 337-A(i) and 337-L(ii), P.P.C., the both sections are bailable. He .Further contended that uo recovery has been effected from application Mohiuddin and the lathis were foisted upon rest of the applicants. Therefore, the case of the present applicants comes within the ambit of section 497(2), Cr.P.C. And they are entitled for grant of bail. He relied upon 2010 M LD 1795, 2003 PCr.LJ 1688, 2003 MLD 115 and 1715, 2010 PCr.LJ 600, 1534, 1994 SCM R 2051, 1999 SCM R 1320, 1360, PLD 1998 SC (AJ&K) 43, PLD 1996 SC 241, .PLD 1995 SC 34, 2000 SCM R 1854 and 1995 SCM R 310.
6. ' On the other hand, learned counsel appearing for the complainaa.Contended that the names of the present applicants appear in the F.I.R. With their respective weapons. From the perusal of the F.I.R., it is crystal clear that the accused persons with their common object, fully prepared attacked upon the complainant party and framed unlawful _ assembly so, each of the accused is responsible for the murder of both innocent persons and four injured persons namely Qurban, Ali Hassan, Shakeel and Ali'Ahmed, who received the injuries at the hands of present applicants and co-accused. The applicants Alam Khan was absconder and after completion of formalities under sections 87 and 88, Cr.P.C. When be declared proclaimed offender, subsequently arrested on 22-1- 2012. The recovery of the lathis and other incriminating' firearm effected from the accused in the F.I.R. This is double murder case and the accused persons knowingly attacked upon the complainant party on their land so, each of the accused with intention to commit murder participated in the offence mentioned in the. F.I.R. He relied upon 2005 SCM R 17 and 2006 SCM R 966 and he prayed for rejection of bail applications.
7. ' The learned A.P.G. Supported the arguments of learned counsel for the complainant and opposed the grant of bail by saying that the order passed by the learned trial Court is very much correct and according with law.
8. After going, through the contents raised by learned counsel for the parties and learned A.P.G. And file in hand, it appears that the learned counsel appeared on behalf of the applicants have not denied about the participation of the- applicants/accused from the scene of offence, but the role assigned to them is general in nature in the alleged F.I.R. And not specific, who caused 'the injuries to the injured persons.
9. The injuries received by the applicants Mohiuddin and Yahya Khan also mentioned in the and names of the applicants were specifically mentioned in the F.I.R. With their respective weapon, which shows that from them no body caused injury to the deceased. The prosecution witnesses have supported the version of the complainant, as they also received injuries at the hands of applicants as well as' co-accused. No doubt from the alleged incident two persons have lost their lives and four persons were injured and incident was taken place in broad day light, therefore, the accused/applicants are responsible for their role to cause A ' injuries to the prosecution witnesses, not for causing injuries to both the deceased. The second F.I.R. Registered by the accused side, which was cancelled, in which the time of incident was not same, it cannot be said that there are counter cases but cross version and the same F.I.R. Was lodged after the present F.I.R., but the time of incident was shown prior to the alleged present F.I.R. As per principle laid down by the apex Court that at the bail stage tentative assessment can only be made and the deeper appreciation is not permissible in the case-law referred by the learned counsel for the applicants MUHAMMAD v. THE STATE (1998 SCM R 454) (Supra) bail grant of---Accused had allegedly armed and made ineffective firing and no injury was attributed to him during the occurrence---Case against accused, therefore, needed further enquiry--- Petition for leave to appeal was converted into appeal and accused was admitted to bail.
10. ' In the case of FARAZ AKRAM v. THE STATE reported in 1999 SCM R 1360 (Supra), section 302/34--- Bail---No overt act was alleged described to the accused except of ineffective firing, which also stood disproved because no empty was recovered from the spot---Fatal shot was attributed to co-accused and the question of vicarious liability of accused could be determined at the trial--- Case against accused, thus, required further enquiry as contemplated by section 497(2), Cr.P.C.--- Petition for leave to appeal was accordingly converted into appeal and the accused was admitted to bail.
11. 'In the case of ATTAULLAH and others v. THE STATE reported in 1999 SCM R 1320 (Supra), Bail--- Accused were not alleged to have caused any injuries to the deceased---Order of High Court cancelling bail Of accused was set aside in circumstances and that of Sessions Court rightly allowing bail to them was restored---Petition for leave to appeal was converted into appeal and allowed accordingly. In case of MEERAN BUX v. THE STATE reported in PLD 1989 SC 347, in which the view was taken by the apex Court that injury alleged to have been caused by the accused to the leg of the deceased by gunshot was according to post-mortem report neither fatal nor was caused on the vital part of the body and declared to be simple and on this point the apex Court granted the bail. In case of SHABBIR v. THE STATE reported in 2003 M LD 1715 (Supra), sections 302, 324, 114, Bail grant of---Accused had not caused any injury to two deceased persons and was alleged to have caused simple injuries to three prosecution witnesses with hard and blunt substance---Case against accused, in circumstances, was fit for grant of bail. Sections 302, 337- H(ii), 148 and 149---Qatl-e-amd---Bail, grant of---Injury alleged to have been caused by accused was on the knee and medical report stated that it was only muscle deep---F.I.R. Had revealed that first it was the co-accused who fired with his shotgun and one of the pellets went inside the thorax cavity above the left nipple; and medical report was clear that death was caused by injury to vital organ, such as heart and lung as a result of fire caused by the co-accused---Medical report also stated that said injury was sufficient to cause death in the ordinary course of nature---Accused was arrested on 10-6-2009, Challan had been filed 15 days after arrest, charge had not been framed---Role, ascribed to accused was of firing on non-vital parts of the body--- Accused, was admitted to bail, in circumstances.
12. In view of the above facts and circumstances discussed, the case-law of apex Court that mere on the punishment of the offence the bail cannot be withheld and the case of the present applicants is distinguishable with the case of main accused Shahzad, Fawad, Nawab and Badshah Khan, the present applicants have caused the injuries to the prosecution's witnesses, which declared by the M.L.O. Are simple in nature. The injuries to the prosecution witnesses are punishable with imprisonment of less than seven (7) years, most of them two years; .None of injury is specifically attributed to a particular person. No doubt, collective activity can also be an offence, but in the circumstances, this is a case for bail. Moreover, in the criminal law of administration every person is responsible for his own act, liable for punishment as he done, the vicarious liability of the present applicants would be determined at the trial. The applicants make out their case for grant of bail.
13. Consequently, the bail applications are allowed and the applicants be released on bail subject to their furnishing solvent surety in the sum of Rs,200,000 (Two Lac) each with P.R. Bond in the like amount to the satisfaction of the trial Court.
14. ' The observations made herein above are tentative in nature and will not prejudice the case of either party at the time of trial.