1. This order will dispose of three applications moved by the applicant who is facing trial in three cases. The incident took place at 10 a.m. The place of incident is Orangi Town. The First Information Report (164/85) was lodged at about 6 p.m. By S.H.O. Abid Hussain. In this information report the name of the applicant does not figure. According to this figure three groups fought with each other duly armed with weapons. The present applicant was arrested on 7-5-1985. His bail application was rejected by this Court on 15-8-1985 in F.I.R. No. 164/85. On 19-4-1985 there is another F.I.R.
2. (169/85) in respect of the same incident. In this F.I.R. Also the name of the applicant does not figure which was lodged by S.H.O. According to this F.I.R. The Biharis attacked on Pathans. Then 3rd F.I.R.
3. (174/85) was lodged on 20-4-1985 by Halim Khan. In this report the name of the present applicant is mentioned. It is alleged that the applicant delivered a speech and addressed a large gathering of Biharis in Gulshan-e-Bihar wherein he instigated the persons present to kill Pathans and turn them out. Thereafter, 3,000 to 4,000 persons attacked them with Lathis, Dandas and knives and murdered Dost Muhammad and Noor Muhammad Khan, etc. It is contended by the learned counsel for the applicant that the name of the applicant does not appear in the first and second F.I.Rs and his name was mentioned only in the 3rd F.I.R. Which was lodged after 12 days of the incident and thus, there were chances that this F.I.R. Was registered after consultations.
4. The learned A.A.-G. Has opposed the applications on the ground that his application in F.I.R. No. 164/85 has been rejected by this Court. The reason which prevailed in rejecting the application was that P.Ws. Fazal Din, Mumtaz Khan, Abdul Naqi and Mir Khan have implicated the present applicant and they have stated that the applicant was leading a mob who attacked the opposite group and instigated to burn the houses and kill the people. The learned counsel has stated that the applicant was not armed with any weapon and he has not committed any offence and the only allegation against him is that he instigated to attack the opposite group but only five accused have been arrested in three cases. The co-accused has been admitted to bail in F.I.R. No. 164/85 in which the two persons have been challaned including the present applicant. In F.I.R. No. 169/85, five persons have been challaned including the present applicant and in F.I.R. No. 174/85 only two persons including the present applicant have been challaned. The 3rd F.I.R. Lodged by Halim Khan does not allege that the applicant led the procession and in his presence, opposite group was attacked and their houses were damaged.
5. It is contended by the learned counsel that no cognizance as required under section 190(3), Cr.P.C.
6. Has been taken as the order taking cognizance is not speaking order. There is no force in this contention. The entire material was before the Court when the cases were registered and the applicant as accused was remanded in these cases and, therefore, it is to be accepted that the Court had applied its mind before remanding the applicant to the judicial custody. However, it is a case of rioting and only five persons have been challaned in three cases. The accused was not armed with any weapon. He had not participated in the commission of any offence. He had not himself attacked and caused the death of any person or damaged the property. The allegation against him is of a general nature. No overt act is attributed to the applicant except the instigation.
7. The previous application in F.I.R. No. 164/85 was rejected by this Court when the final challan was not submitted. The material so far collected by the police would show that the evidence does not indicate that the applicant was either armed with any weapon or participated in the commission of murder.
8. When the previous application was rejected only one F.I.R. Was C before this Court. Thereafter, two more reports were recorded about .The same incident. At that time the matter was still under investigation and was not considered to stifle the investigation at the initial stage. Now the case has been challaned and the investigation is completed. Therefore, in such circumstances the entire evidence has been examined. The co-accused have also been admitted to bail. Only five persons have been challaned in three cases. I, therefore, admit the applicant to bail in all the three cases. He shall be released if he furnishes the surety in the sum of Rs.50,000 (Rupees fifty thousand only) in each case and P.R. In the like amount to the satisfaction of the trial Court. The observation on the merits of the case is not binding on the trial Court.