Briefly the facts stated are, that on 1 October, 1979 at about 8.00 a. m., the complainant Haji Roshan Ali, his son Ahmed Ali and nephew Sikandar Ali, residents of village Khairoo, Jatoi, Taluka Wareh, were going from their village to the fields for cutting grass. When they reached near the shop of Mehar Jatoi in the street, Amir Bux, Ghulam Hussain, Ghulam Muhammad, Ghulam Nabi, Mashooq Ali, Gul Hassan, Muhammad Amin, Bachu, Allah Dino, Azim and Abdul Karim suddenly came out of the shop and Gul Hassan instigated others and told them not to spare any of them, whereupon Amir Bux, Ghulam Hussain, Ghulam Muhammad, Ghulam Nabi and Mashooq caused hatchet blows to Sikandar Ali on his head, shoulders, arms and other parts of the body and the remaining culprits caused hatchet blows to Ahmed Ali on his head, right shoulder, arms an d other parts of the body. Ahmed Ali raised cries which attracted Ghulam Sarwar and Allah Wassaya who also witnessed the entire incident. They raised cries whereupon the accused made good their escape and went away to their houses. Sikandar Ali succumbed to the injuries on the sopt, whereas Ahmed Ali was in a state of unconscious--ness and subsequently he also died. The motive for the offence has been shown to be a dispute over 10 jarebs of land purchased by Ahmed Ali about two years prior to the incident. The land in question originally belonged to latois for which Ahmed Ali had filed a Civil Suit against Ghulam Nabi and others which was pending in the Court of Civil Judge, Wareh, at the time of incident. The accused bore a grudge against Ahmed Ali on that account, resulting in the present incident. The first informa--tion report was lodged with the police who investigated the offence and ultimately sent up the accused in the Court of the Ist Additional Sessions Judge, Larkana.st
2. Bail application was filed on behalf of all the accused in the Court of the learned Ist Additional Sessions Judge, Larkana, who granted bail to accused Gul Hassan on the ground that he had committed no overt act, whereas be dismissed the bail application on behalf of the rest of the accused vide his order dated 16th December, 1979, observing that specific role of causing injuries to the two deceased was attributed to them.
3. Subsequently, bail application was moved in the High Court on behalf of five accused namely, Amir Bux, Ghulam Muhammad, Mashooq Ali, Ghulam Hussain and Ghulam Nabi. The learned Judge of the High Court vide his order dated 8th March, 1980 dismissed their bail applica--tion on the ground that their names with specific part assigned to them appeared in the F. I. R. Coupled with the fact that the incident had taken place in the broad daylight and therefore, there were no circumstances to grant bail to them.
4. Thereafter bail application was repeated in the Court of the learned Ist Additional Sessions Judge, Larkana on behalf of all the accused except Gul Hassan who was already on bail, namely Amir Bux, Ghulam Hussain, Ghulam Muhammad, Mashooq Ali, Ghulam Nabi, Muhammad Amin, Bachu, Allah Dino, Azim and Abdul Karim and the learned 1 Additional Sessions Judge vide his order dated 13th April. 1980 granted bail to the accused Amir Bux, Ghulam Hussain, Muhammad Amin, Bachu, Azim and Abdul Karim, whereas he dismissed the bail application filed on behalf of rest of the accused.
5. This application for cancellation of bail granted to the accused above-named by the learned 1 Additional Sessions Judge, Larkana, has been moved mainly on the ground of the merits of the case against them and for the reason that there were no fresh grounds for the learned Addi-- tional Sessions Judge to re-consider the bail application of the five accused-- respondents whose bail was earlier refused by him and the bail application of two of theta Amir Bux and Ghulam Hussain was rejected by the High Court, the sixth of them namely Azim having died in the meantime, and that he had exercised his jurisdiction capriciously. The order of the learned 1 Additional Sessions Judge itself is clear that he had no fresh ground to reconsider their bail application except in case of Muhammad Amin who is said to have produced medical certificate from Medical Officer, Bulri, District Hyderabad, in support of his plea of alibi to the effect that on the date of incident he was confined in the hospital at Bulri. With regard to the remaining four respondents Amir Bux, Bachu, Abdul Karim and Ghulam Hussain not only he refused them bail by his earlier order as stated above, but it was also refused by the High Court in case of respondents Amir Bux and Ghulam Hussain whose case is exactly identical to that .Of Abdul Karim and Bachu and that, the learned Additional Sessions Judge while granting bail to Amir Bux, Bachu, Abdul Karim and Ghulam Hussain had not only brushed aside his own order refusing bail to them earlier but also ignored the order of the High Court.
6. On merits of the case against the respondents the incident has taken place in broad daylight. It has been witnessed by three eye-witnesses, the complainant Roshan Ali, Ghulam Sarwar and Allah Wassayo who were attracted by the cries of Roshan Ali. The first information report was lodged promptly, the distance between the place of incident and the police station was three miles when the first information report was lodged at 9.30 a. m. As disclosed by the order of the learned 1 Additional Sessions Judge himself. The first information report not only discloses the names of the respondents but it discloses that they were armed with hatchets and that they caused hatchet blows to the two deceased had 7 injuries whereas the other had 8 injuries caused by hatchets. The medical report therefore appears consistent with that of the ocular version to the effect that the accused caused hatchet blows to the deceased. The number and nature of the injuries therefore cannot be said to be in conflict with the number of the assailants as disclosed in the ocular version as well as the facts disclosed in the first information report. The motive for the alleged offence isst st st st also disclosed in the first information report which is said to be a dispute over land which is the subject-matter of the litigation in Civil Court at Wareh between the parties.
7. With this prima facie case against the respondents, when the learned 1 Additional Sessions Judge had earlier refused bail to them and so by the High Court to two of them Ghulam. Hassan and Arnir Bux, it looks strange that without having any fresh ground or material before him, except in the case of respondent Muhammad Amin, the learned Additional Sessions Judge granted bail to the respondents only on the ground that no incriminating articles were recovered from them. His observations to the effect that the ocular evidence is related and inimical to the accused and that no independent person of the locality was examined by the police, when no evidence was recorded in that respect, were in justified, in the circumstances of the case.
8. Mr. N. K. Jatoi, the learned counsel appearing on behalf of the respondents has mainly contended that in view of the large number of accused person shown, there was likelihood of false implication and that the learned Lower Court may not be having knowledge of the High Court order refusing bail to two of the respondents and that there are laches on the part of the prosecution for having moved this application for cancellation of bail. In the face of the merits of the case discussed above, there appears no substance in his first contention. So far the second con-- tention is concerned, I find from the record that the copy of the order passed by the High Court had been obtained by the applicant from the Court of the learned 1 Additional Sessions Judge himself.
So far his third contention is concerned, laches in the circumstances of the case appear to be of secondary importance, and would therefore be of no consequence. Reliance in that respect has been placed on the decision in the case of Muhammad Sharif v. Muhammad Amin Dar (PLD 1978 Lah. 1273).
9. Consequently, I find that the learned 1 Additional Sessions Judge, Larkana has not exercised the discretion judicially except in case of respondent Muhammad Amin, I, therefore allow this application for a cancellation of bail granted to respondents, Amir Bux, Bachu, Abdul Karim and Ghulam Hussain only. Non-bailable warrants be issued for their arrest immediately.