1. The applicants arc facing trial under sections 392, 307, 149, 295, 427, 428, 429 and 436, P.P.C. And section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 13-D of the Arms Ordinance.
2. The brief facts of the case are that on 29-4-1987 one Muhammad Usman Gopang lodged report at P.S. Miro Khan, District Larkana, which reads as under:- "It is complained that our case-fellow Manzoor Ahmed Gopang resident of Gaji, of Taluka Miro Khan had old blood feud with Inayat Janwari and others, and Noorullah Magsi and others, since about 4/5 years. The cases between the parties were going on. We have got no near relationship with Manzoor Ahmed Gopang, but we are case-fellows only. Recently three days prior to this incident i.e. On 18-4-1987 in the morning Janwaris and Magsis had jointly attacked Gaji Village. We had no concern with that incident. Yesterday evening as usual we alongwith our family members were sitting in the houses. The animals were also: there, suddenly our houses were attached from all the four corners Threats were extended that anybody coming out will be killed. We hiding ourselves, identified those persons to be, (1) Mir Khurshid Magsi, Chairman, Shahdadkot duly armed with rifle,
(2) Noorullah Magsi with Kalashnikov, (3) Attaullah Magsi with Kalashnikov, (4) Mushtaque Ahmed Magsi with Rocket-launcher, (5) Muhammad Khan Khoso with Kalashnikov, (6) Sanwan Admani Magsi with Kalashnikov, (7) Niazal Magsi with rifle, (8) Piral Magsi with rifle, (9) Muhib Admani Magsi with rifle, (10) Miran Admani Magsi with rifle, (11) Dedar Admani Magsi with rifle, (12) Ashiq A.I Admani Magsi with rifle, (13) Yousuf Admani Magsi with rifle, (14) Jhangal Admant Magsi with rifle (15) Gul Hassan Katchar Magsi with rifle, (16) Mehboob Kerozali Magsi with rifle, (17) Nizamuddin son of Azizullah Hasrani Magsi with rifle, (18) Allahdino son of Malook Hasrani Magsi with rifle, (19) Ismail with rifle, (20) Imamuddin Brohi Dacoit with Kalashnikov, (21) Raza Muhammad Brohi with rifle, (22)
3. Ghulam Rasool Brohi with rifle, (23) Wadho son of Jaffar Hisbani Magsi with gun, (24) Nazro son of Khamiso Magsi with gun, (25) Uaman son of Saleh Hisbani Magsi with gun, (26) Saleh son of Usman Hisbani Magsi with gun, (27) Mohib son of Waris Hasrani Magsi with Klashnikov, (28) Hashim son of Muhammad Saleh Magsi resident of Karah with rifle, (29) Punhal son of Mir Beg Magsi resident of Karah with rifle, (30) A.I Gohar Magsi with rifle, (31) Inayat son of -Gul Hasan Janwri with Rocket- launcher, (33) Turab son of Mir Muhammad Janwri resident of Mehr with Klashnikov, (34) Akbar Janwri Dacoit with Kalashnikov, (35) Gul Hasan son of A.I Hasan Janwri with Klashnikov, (36)
4. Manthar son of Gul Hasan Janwri with rifle, (37) Mumtaz Gul Hasan Janwri with rifle, (38) Dadan son of Gul Hasan Janwri with rifle, (39) Hussain A.I son of Inayat Janwri with rifle, (40) Abdul Hadi son of Punjah Janwri with rifle, (41) Mehboob son of Amin Janwri with gun, (42) Janib son of Nihal Janwri with gun, (43) Bahadur son of Nihal Janwri with gun, (44) Ghulam Muhammad son of Mani Janwri with gun, (45) Muhammad Khan son of Hayat Janwri with gun, (46) Sher Khan son of Mehmood Janwri with Klashnikov, (47) Nooral son of Mehmood Janwri with gun, (48) Raza Muhammad son of Mehmood Janwri with gun, (49) Mehmood son of Noorul Janwri with gun, (50) Moula son of Murad Janwri with rifle, (51) Mukhtiar son of Murad Janwri with gun, (52) Mashooq son of Mehar Janwri with gun, (53) Sherali son of Haban Janwri with gun, (54) Atta Muhammad son of Hayat Janwri with. Gun, (55) Shaman son of Hayat Janwri with gun, (56) Muhammad Khan son of Jumo Janwri with gun, (57) Bashir son of Nihal Janwri with gun, (58) Allah Bux son of Nihal Janwri with gun, (59)
5. Abdul Rafique son of Sharif Janwri with gun, (60) Buxan son of Sharif Janwri with gun, (61) Bago son of Gaji Janwri with gun, (62) Anwar son of Bago Janwri with Klashnikov, (63) Suhbat son of Akbar Janwri with gun, (64) Muhabat son of Akram Janwri with gun, (65) Allahdino son of Ghulam Kadir Janwri with gun, (66) Muharram son of Allahdino Janwri with gun, (67) Mehboob son of A.I Khan Janwri with rifle, (68) A.I Gul son of A.I Khan Janwri with gun, (69) Hussain son of Dil Murad Janwri with rifle, (70) Arab son of Ghullan Janwri with gun, (71) Mithal son of Ghulam Hyder Janwri with gun,
(72) Bachal son of Hidayat A.I Janwri with gun, (73) Latif son of Hidayat A.I Janwri with gun, (74)
6. Umed A.I son of Hidayat A.I Janwri with gun, (75) Mashooq son of Buxal Janwri with gun, (76)
7. Qurban son of Khadim Janwri with gun, (77) Khadim son of Alibux Janwri with gun, (78) Manthar son of Fakiro Janwri with rifle, (79) Wadho son of Gaji Janwri with gun, and about 20 more unidentified persons belonging to Magsi tribe of Magsi Force in Government uniforms and 10 more unidentified persons belonging to Janwri tribe, duly armed with weapons, and they could be identified when seen started firing indiscriminately from all the four corners of our houses. They also threw Rocket-Launchers, and fired Klashnikov as a consequence whereof our attached huts (houses) started burning, 19 (nineteen) houses belonging to ourselves and Mir-Jats were burnt, 7 goats standing inside the houses were also burnt. One camel belonging to Jan Muhammad Brohi was killed due to firing. We ultimately took refuge in the mosque but they went on firing for 3/4 hours and subsequently encircled the mosque. The cruels were given Holy Qur'an and were entreated but despite that they came inside the mosque and accused Noorullah Magsi, fired from his Kaiasnikov at my nephew Muhammad Siddik. Accused Sanwan Magsi fired from his Klashnikov at my nephew Abdul Wahab. Accused Niazul Magsi fired from his rifle at my nephew Khamiso.
8. Accused Attaullah fired his Klashnikov at my nephew Bashir. Accused Muhib Magsi fired from his rifle at my cousin Muhammad Khan. Accused Yousuf Magsi fired from his rifle at my brother Ghulam Muhammad. Accused Ashiq A.I Magsi fired from his rifle at my nephew Abdul Karim.
9. Accused Turab Janwri fired from his Klashnikov at my niece Mst. Hasina. Accused Akbar Janwri fired from his kalashnikov at my niece Mst. Halima. Accused Mumtaz Janwri fired from his rifle at my daughter-in-law Khurshid. Accused Gul Hassan Janwri fired from his Klashnikov at my daughter-in-law. Noor Khatoon. Accused Ghulam Muhammad Janwri and Yousuf Magsi fired from their rifles at my brother Ghulam Muhammad. Accused Ashiq A.I Magsi fired from his rifle at my nephew Abdul Karim. Accused Turab Janwri fired from his kalashnikov at my niece Mst. Hasina.
10. Accused Akbar Janwri decoit fired at my niece Mst. Halima. Accused Mumtaz Janwri fired from his rifle at my daughter-in-law Mst. Khurshid. Accused Gul Hassan Janwri fired from his klashnikov at my daughter-in-law Noor Khatoon. Accused Ghulam Muhammad Janwri fired from his gun at my niece, Mst Khudeja. Accused Muhammad Khan Janwri fired from his gun at my daughter's daughter Mst. Sughra. Accused Nooral Janwri fired from his gun at my nephew Munner Ahmed, as a consequence whereof they all fell down and died instantaneously. Accused Imamuddin Brohi fired from his Klashnikov at my son's son Habibur Rehman. Accused Ismail Sario fired from his rifle at my brother's wife Mst. Zubeda. Accused Jhangal Magsi fired from his rifle at my niece Mst.
11. Shahzadi. Accused Husain Magsi Fred from his rifle at my son's daughter Mst. Maryam. Accused Allahdino Janwri fired from his gun at my niece Mst. Hakim. Accused Bachal Janwri and Atta Muhammad Janwri fired from their guns at my niece Shah Bibi as a consequence whereof they were injured. Manthar Jat and Jan Muhammad Brohi also received injures. I alongwith (1) Safar son of Miandad, (2) Abdul Hadi son of Khamiso, (3) Noor Ahmed son of Ahmed Din, (4) Haji Abdul Haque son of Muhammad Juman Gopang by case were miraculously saved inside the mosque thereby giving dodge and sleeping in the basement side of the wall. The culprts then decamped by raising slogans. Then we saw that Holy Qur'an was also hit due to firing. When we recollected senses, on verification it was found that the licensed gun of Bashir Ahmed Gopang including its licence, licensed gun of Abdul Hamid, DBBL including its licence, licensed rifle of our guest Manzoor Ahmed Chandio including its licence, our household articles, gold ornaments and clothes valued at Rs.1,25,000 and Rs.59,000 hard cash were taken away by the culprits. As far as cattle were concerned, (sixteen) 16 buffaloes valuing at Rs.50,000, (seven, 7 bullocks valuing at Rs.30,000, two cows alongwith one female young one of cow and two male calls of cows valuing at Rs.8,000 six goats valuing at Rs.2,000 were also taken away by the culprits. The damage caused to our nineteen houses which were burnt down was at Rs.3,00,000. We went on weeping for the entire night. Today in the morning you alongwith police have come to us. I complain that for the God sake justice be done to us."
12. After recording the F.I.R. Police arrested majority of the accused. One of the accused namely Muhammad Hassan moved an application for bail before the learned Sessions Judge but the same was rejected. However, he moved an application for bail before this Court which was allowed on 3-3-1988 vide St. Bail No. 152 of 1388. Later on accused Mithal and Wadho alias Wahid Bux moved bail application before the learned IInd Additional Sessions Judge, Larkana, and they were allowed bail on the basis of order granting bail to co-accused Muhammad Hasan. Thereafter the present applicants moved an application for bail before the learned Judge but the same was rejected.
13. I have heard Mr. M.I. Memon learned counsel appearing for the applicants, Mr. Abdul Hafeez Lakho, learned Advocate-General, Sind appearing for the State, and have gone through the documents produced alongwith the bail application.
14. It has been contended by Mr. M.I. Memon learned counsel appearing for the applicants, that the part assigned to the present applicants is similar to those who were granted bail by the High Court and by the learned trial Judge, and therefore, the applicants were also entitled to bail.
15. Mr. Abdul Hafeez Lakho learned Advocate-General, Sind appearing for the State, has vehemently opposed the grant of bail to the applicants on the ground that the applicants were armed with fire-arms and they and the co---accused had attacked the village and had behaved in a cruel manner. They had fired at the innocent villagers indiscriminately in which their houses, including household articles were burnt, and 7 goats. One camel of P.W. Jan Muhammad Brohi was also killed due to firing. Thereafter the villagers took shelter in the mosque on which they were fired at in the mosque, due to which number of persons died and many of them were seriously injured. That this was a case where there was pre-planned attack on the entire village and, therefore, provisions of section 149, P.P.C. Were attracted, and as such the applicants were not entitled to bail. He has relied upon 1979 SCMR 91 and 1981 SCMR 849.
16. I have considered the contentions of the learned counsel. The bare reading of F.I.R. Shows that the present applicants were armed with shot guns and they alongwith their co-accused which were about 100 in number had fired at the village with Rocket-Launchers, Kalashanikoves, guns and other fire-arms with the result that the houses of the villagers, their household articles, and cattle were burnt. Thereafter the villagers took shelter in the mosque but they were fired at even in the mosque due to which 14 persons died and 8 persons were injured. The F.I.R. Further shows that property worth lacs of rupees was taken away by the accused. The manner in which they acted and fired at the village and the villagers was shocking. There is an allegation that all the accused had come together duly armed and fired at the village and villagers and therefore, it cannot be said that there was no overt act assigned to the present applicants. Even otherwise it was a case where there was a pre-planned attack on the helpless villagers, and therefore, prima facie provisions of section 149, P.P.C. Were attracted.
17. PLD 1978 SC 236, it was observed by their Lordships of the Supreme Court that:-- "The Courts on the basis of the materials placed before them, such as F.I.R., statements recorded under section 161, Cr.P.C. Are fully justified, even at the bail stage, to go into the question whether a case of constructive liability is made out."
18. 1979 SCMR 92:- "The petitioner was refused bail by High Court on the ground that the petitioner was a member of an unlawful assembly; he had accompanied his co-accused to the spot while armed with a stick and had made a murderous assault on the complainant while his co-accused committed murder of Manzoor Ahmed in prosecution of the common object of the said unlawful assembly and, therefore, provisions of section 149, P.P.C, were attracted', their Lordships of the Supreme Court agreed with the observations of the learned Judge of the High Court and petition was dismissed.
19. As far as the order granting bail to co-accused Muhammad Hassan by my learned brother Nasir Aslam Zahid, J. Was concerned, it will be appropriate to refer to a passage in the order which reads as under:- "In this case, there is no allegation against the applicant that he had fired or killed or injured any person. Mr. Roshan A.I Solangi has also submitted that there is a doubt about the identity of the applicant. In the. Facts of this case, in my view a case for bail has been made out by the applicant."
20. Looking to the allegations against the present applicants and the observations made in the case of Muhammad Hasan it cannot be said that the case of the present applicants was identical specially when the applicants are named in the F.I.R., they are shown to have been armed with shotguns and that it is alleged that they alongwith co-accused had fired at the village and the villagers, As far as co-accused Mithal and Wadho who were granted bail by the learner trial Judge, were concerned, the order rejecting present bail application show that an application for cancellation of their bail has been moved the complainant before the High Court.
21. However, in view of the fact that the incident took place on 19-4-1987, I direct the learned trial Judge to proceed with the case expeditiously. In case some accused are absconding, their case may be separated from the case of those accused who are either in custody or on bail. I am conscious of the fact that there are number of accused and, therefore, some may not be able to appear in the Court and some of them may not be produced in Court for any reason, in such situation the Court will be at liberty to grant exemption for that date as envisaged by section 540- A, Cr.P.C. And proceed with the case.
22. The applicants will be entitled to repeat their bail application after complainant and two injured eye-witnesses are examined.