' Applicants Ghulam Qadir, Abdul Majeed and Muhammad Ayub have applied for post-arrest bail, whereas applicants Nazar Muhammad and Niaz Ahmed have applied for pre-arrest bail in F.I.R No, 169/2011, P.S. Khudaabad, District Dadu under Sections 302/324/365/458/147/148/149/504, P.P.C.
Lodged by complainant Ghulam Mustafa stating therein that on account of marriage contracted by one Mst. Khalida Chandio with her free-will with his relative Ali Raza Panhwar, her family/tribe had annoyed, they were provoked to take revenge. On 09.04.2011 the complainant, his brother Sawan, Abdul Hakeem, his nephew Ashraf Ali, his father-in-law Saindad, paternal cousin Mumtaz and other relatives were sitting in compound of their house, the electric bulb was flashing, when at about 7:45 p.m. Accused Muhammad Khan, Abdul Rasheed, Abdul Majeed, Soomar and Mazhar Ali armed with Kalashnikovs, Muhammad Ismael, Mehar, Niaz Ahmed, Nazar Ali and Abdul Hakeem armed with Repeaters, Mumtaz Ali, Akbar Ali @ Akoo and Ghulam Qadir armed with rifles and Anwar Ali empty handed alongwith 9/10 unknown armed persons entered the house of complainant and raised lalkara. It is alleged that accused Muhammad Khan fired at Ashraf Ali, accused Abdul Rasheed fired at Mumtaz Ali, accused Soomar fired at Saindad and accused Muhammad Ismael fired at Rashid Ali, all the injured after sustaining fire-shot injuries fell down.
Accused Mazhar Ali and his companions also kidnapped Mst. Farzana. Deceased Sawan the husband of Mst. Farzana in order to rescue his wife followed the accused persons, on which accused Mazhar Ali fired at Sawan, who after sustaining injuries fell down, all the accused thereafter started indiscriminate firing and ran away. The complainant and other witnesses saw Sawan and Ashraf Ali had succumbed to their injures. The complainant then shifted dead bodies and injured persons to Civil Hospital Dadu, wherefrom the injured were referred to Hyderabad. On the next day after funeral of both the deceased the complainant went to Police Station and lodged F.I.R. It is further case of the prosecution that about 7/8 months of the incident abductee Mst.
Farzana was recovered, the Investigating Officer produced her before concerned Judicial Magistrate for recording her statement, wherein she besides the names of the accused nominated in the F.I.R. Also disclosed the names of Muhammad Ayub, Ghulam Ali and Shaiq Ali to be the companions of the accused persons. After investigation the investigator submitted the challan before the concerned Court, the bail applications moved by the accused before the trial Court were dismissed.
2. I have heard learned counsel for the applicants, learned counsel for the complainant and learned Additional Prosecutor General, Sindh and perused the police papers.
3. Learned counsel for the applicants have contended that the case is false and fabricated; the applicants are innocent, they have been implicated falsely due to enmity between the parties, which is admitted in FIR. The specific role of causing the murder of deceased Sawan is attributed to Mazhar Ali who is on bail granted by the trial Court, deceased Ashraf Ali was murdered by accused Muhammad Khan who is absconder. The allegations of causing fire-shot injuries to Saidand, Rashid Ali and Mumtaz Ali with intention to commit their murders are attributed to Soomar, who is on bail, Muhammad Ismail and Abdul Rasheed, who are absconders. Per learned counsel, no role of causing death or injuries to any person is attributed to any of the applicants; their case is on better footing as that of co-accused, who are on bail granted either by this Court or by the trial Court; as such they under the rule of consistency deserve the same concession of bail. Mr. Farid A. Dayo, Advocate has further contended that the applicant Muhammad Ayub is Government employee posted as teacher in Civil Aviation Authority Model School-II Karachi, he was not nominated in F.I.R.
Nor any role was assigned to him, his name along with his sons Ghulam Ali and Shaiq Ali was disclosed by abductee Mst. Farzana in her statement under Section 164, Cr.P.C. Recorded after seven months of the incident. On the day of incident Muhammad Ayub is alleged to be on his duty, such certificate issued by the Principal is placed on record, which casts doubt in the prosecution case. Learned counsel have relied upon the cases Nasir Ahmed vs. The State & others (2014 SCM R 27), Muhammad Hashim Khoso vs. The State (2011 P.Cr.L.J. 1580), Liaqat Ali vs. The State (1995 P.Cr.L.J. 672).
4. Conversely, learned Additional Prosecutor General, Sindh with the assistance of learned counsel appearing for the complainant has argued that the applicants/accused are nominated in F.I.R.
With specific allegations that they alongwith their companions duly armed with lethal weapons committed house trespass, caused death of deceased Sawan and Ashraf Ali and injuries, with intention to commit murder, of the injured Saindad, Rasheed and Mumtaz, as such all the accused persons irrespective of causing fire shot injuries, are equally responsible as provided under Section 458, PPC. They have further contended that accused Muhammad Ayub was nominated by abductee Mst. Farzana in her statement under Section 164, Cr.P.C. Recorded soon after her release from the clutches of accused and that the plea of alibi of Muhammad Ayoob will be considered on conclusion of trial, the benefit of alibi at bail stage cannot be considered, in these circumstances according to learned Addl.P.G. And learned counsel for the complainant no case for bail is made out, Learned counsel for the complainant has also relied upon the case of Riaz Shah & another vs. The State (1990 M LD 204 Lahore)
5. I have perused the record. Before parting with the merits of the case, I may mention that after the grant of bail, to accused Soomar, two accused Mazhar Ali and Mehar applied for post arrest bail through Criminal B.A.No, 227/2012, which was dismissed vide order dated 20.03.2012, co-accused Mazhar Ali has been granted bail by the trial Court on the ground of statutory delay in conclusion of trial, as such the grant of bail to accused Soomar and Mazhar Ali will not be helpful to the case of applicants for grant of bail under the rule of consistency.
6. Adverting to the merits of the case, perusal of F.I.R manifest that all the applicants along with accused on bail and absconding accused duly armed with deadly weapons entered the house of complainant, during their continuous stay in the house some of the accused committed murder of deceased Sawan and Ashraf while Saindad, Mumtaz Ali and Rashid Ali were injured with intent to commit their murder. The facts and circumstances narrated in F.I.R, besides the Sections applied in F.I.R. Also lead towards the provisions of Section 460, PPC, this section provides for the constructive liability of all the persons jointly concerned in lurking house trespass where one or more of them voluntarily caused or attempted to cause death, it makes participants in lurking house trespass liable to an enhanced punishment, because of certain offences committed, in excess by their associates even in the absence of a common intention or knowledge. Per Prosecution all the eye- witnesses in their statements before the investigator have fully implicated the applicants, one of the main witness Mst. Farzana after her rescue from the captivity of the applicants was produced before the Magistrate for recording her statement under Section 164, Cr.P.C. Where she has also implicated all the accused persons with their specific role. As per memo. Of place of incident 35 empties were recovered from the place of incident, which establishes not only the gravity of offence but indiscriminate firing. The medical evidence also corroborated the ocular testimony of witnesses. The cases cited by the learned counsel for the applicants have facts and circumstances distinguishable as that of case in hand, as such case laws relied upon by defence shall not be helpful to the applicants. For the above reasons prima-facie there appears reasonable grounds for believing that the applicants/accused Ghulam Qadir, Abdul Majeed, Nazar Muhammad and Niaz Ahmed have been guilty of an offence punishable with death or imprisonment for life, as such no case for bail is made out. I therefore, dismiss the bail applications of the above named applicants/accused.
7. The case of applicant Muhammad Ayub is distinguishable from the case of other accused; his name does not transpire in F.I.R., he was not amongst those accused who committed lurking house trespass, Per Prosecution Mst. Farzana disclosed his name first time in her statement under Section 164, Cr.P.C. Recorded after seven months, however she has alleged nothing against him, she in her statement has stated that she was abducted by accused Mazhar Ali, Muhammad Ismael, Soomar, Niaz Ahmed, Anwar and Akbar, when she was made to sit in car, she noticed the presence of applicant Muhammad Ayub and his sons Ghulam Ali and Shaiq Ali (later, both of them during investigation, were found to be innocent and were let off). She further stated that while she was detained in a room for eight months accused Rasheed, Muhammad and Majeed were guarding her. Mst. Farzana except disclosing the presence of Muhammad Ayub outside the house (place of incident) has alleged nothing against him, as such prima-facie the case against the applicant Muhammad Ayoob requires further inquiry. I therefore, admit him to bail, subject to his furnishing surety in the sum of Rs, 2,00,000/- (Two Lacs) and P.R Bond in the like amount to the satisfaction of the trial Court.