1. ' Three applicants and co-accused have been sent up under sections 302, 307, 147, 148 and 149, P.P.C. And section 13-D, Arms Ordinance, by Town Police Station Nawab Shah.
2. ' Briefly the facts giving rise to the present application are that on 30-1-1989 one Pir Muhammad alias Pir Bux lodged a report at Town Police,
10. Nawabshah which reads as under:- "Complaint is that there is Otaq of our `Nekmard' Muhammad Khan Brohi at Moni Bazar, Nawabshah. Our relatives namely Zulfiqar All son of Haji Ahmed, Ihsan son of Haji Fakir Muhammad, who are students and other Brohis stay there. They study at Nawabshah. Ghulam Ali son of Haji Moosa Brohi is also student. He goes to a teacher daily for tuition. Yesterday, viz. On 29-1-1989, Ghulam All said that Aftab and Iqbal both Dahris had prevented him from passing through that road and that otherwise he would be killed. After hearing this news from Ghulam Ali, I tried to contact Dr. Muhammad Umar Dahri but I could not meet him. Today viz. On 30-1-1989, I alongwith Muhammad Ali son of Haji Fakir Muhammad, Ishan son of Fakir Muhammad, Zulfiqar son of Haji Ahmed, Umed All son of Haji, Muhammad Bux son of Saleh Muhammad, Muhammad Ibrahim son of Jumoo Khan and Khair Bux son of Karim Bux all Brohis, came to Hotel of Wafati Mohajir in Moni Bazar for taking tea. Muhammad Ali and Muhammad Bux had Lathis in their hands. As soon as we reached at the said hotel we saw Aftab, Iqbal Javed, Kumla' and one other person sitting in the room of Hotel. Seeing us they fired upon us from pistol and revolvers indiscriminately. Muhammad Ali, Ihsan, Zulfiqar, Muhammad Bux and Umed ALi were hit by these shots. Our companions gave Lathi blows to Javed and Aftab in self-defence. Iqbal and others were naming the fifth person as Mansoor. We have clearly seen that fifth person. We can identify him upon seeing him. All the above injured persons fell down on account of these shots. Thinking that they have died, all the accused ran away with their weapons. Then men of our community also collected. We took the injured to Nawabshah Hospital with their assistance. There the injured became unconscious.
3. Injured Umed Ali son of Haji Brohi died during the course of treatment. Now, I have come and complain that the above accused have fired from pistols and revolvers with the intention to kill and Umed All has died due to shots fired by them. I am complainant, investigation be made."
4. On the other hand co-accused Javed filed a direct complaint before the Civil Judge and F.C.M.
5. Nawabshah, to the following effect and alleged that:- "(1) On 29-1-1989, while I was standing in front of my house, Ghulam Ali Brohi came there and starting misbehaving and peeping inside the house. I, therefore, abused and manhandled him.
6. While leaving, Ghulam Ali issued threats that he will take revenge from me for the insult.
(2) On 30-1-1989, the complainant was sitting inside the hotel of Wafati Mohajir in Moni Bazar at 1- 30 p.m. For the purpose of taking tea. Moula Bux Kalhoro, Abdul Lateef Dahri, Mubarak Lashari and Arshad Memon were also sitting in the said hotel for the purpose of taking tea.
7. (3)The complainant ordered for tea, when in the meantime all the above-named accused who were armed with pistols, revolvers, Khurdam Lathis and knife fitted with clip came there, and immediately challenged the complainant and said that yesterday he had abused their relative Ghulam Ali because he was standing in front of complainant's house and had manhandled Ghulam Ali, they would therefore, kill the complainant and revenge that insult since they belonged to Baluchi tribe. Then all the accused showered Lathi blows on my head and other parts of body and they also gave me injuries with clip. Due to this I bled profusely from my head. My arm was also broken by them. I tried to escape in order to save my life but the blood from the injuries sustained by me reached my eyes and due to severe pain I felt darkness in front of me and I could not get out of the circle of the accused and I could see death awaiting me for certain. In the meantime, the other accused also assaulted the complainant with fire-arms which were fired. Then in order to save his life, the corn plainant fired from his pistol so as to scare the accused and make them flee from the scene. But the accused who came later on kept on firing upon the complainant and he also kept on firing in order to save his life. In the meantime so many persons collected. The complainant became nervous and he was under shock due to severe pain, bleeding and imminent danger of life. Abdul Lateef Dahri and Arshad Memon brought him to Police Station Town Nawabshah as the complainant had received multiple injuries and he had bled profusely.
(4) After reaching the police station, the complainant narrated the whole incident to police and requested them to register his complaint but on seeing a huge mob of people coming inside the police station, the police took the signature of complainant on a blank paper and put him in lock up and he was told that his complaint will be registered.
8. (5)After some time, the police took the complainant to Civil Hospital, Nawabshah for treatment and certificate where he was X-rayed and his injuries were bandaged. He was brought back and detained in lock-up. The complainant was not allowed to meet with any of his friends and/or relatives.
(6) On 8-2-1989 the complainant was grieved to know that due to influence of accused, the police did not register his complaint. He then sent a word to his relatives for getting his complaint registered either with police or in the concerned Court.
9. (7)The complaint of the complainant is that all the above-named accused after consultation with each other attempted to kill him with deadly weapons in order to avenge the incident of 29-1-1989.
10. The complainant prays for justice."
11. ' That the applicants accused moved an application for bail before the learned Sessions Judge, which was rejected by him vide order, dated 10-4-1989.
12. ' I have heard Mr. A.Q. Halepota, learned counsel fo the appellants and Mr. Abdul Ghafoor Mangi, learned AA.-G. For the State, who have taken me through the police papers. Investigating Officer Muhammad Afsar and Deputy Superintendent of Police Mr. Ghulam Muhammad Bhutto were also present in Court called by the learned AA.-G.
13. ' It is contended by Mr. A.Q. Halepota, learned counsel appearing for the appellants that the applicants were not present at the Wardat at the time of incident and that they have been falsely implicated. It was further contended that the applicant Mansoor Ahmed was admitted in Rural Health Centre at Daulatpur District, Nawabshah where he remained as indoor patient for two days from 284-1989 to 1-2-1989 and on 1-24989 he left for Hyderabad and got himself examined by Professor Abdul Karim Abbasi, Heart Specialist. It is further contended that the applicants Iqbal and Naimatullah alias Kundhal were present at Daulatpur in a Faisla at the time of incident which fact has been proved through number of respectable persons as witnesses. It is further contended that the plea of Ali Bi was taken at the initial stage of the investigation and is supported by occular as well as documentary evidence. It is further contended that even the Investigating Officer and Deputy Superintendent of Police had found the applicants innocent during the investigation and had given such report to the Superintendent of Police, Nawabshah. It is argued by Mr. A.Q. Halepota that the absence of applicants is further supported by the circumstances such as absence of any injury on the person of the applicants and absence of applicants' name in the counter direct complaint filed by co-accused (Jawed), and the P.Ws. Have failed to explain the injuries on the person of Jawed and Aftab. Jawed has sustained as many as 11 injuries and Aftab has three injuries caused to him. Suppression of this fact goes to show that complainant party has no respect for truth. Finally it was argued that complainant party resided outside Nawabshah and were clearly the aggressors as is evident from direct complaint.
14. ' In support of his contentions, the learned counsel has relied upon the following decisions:-
(1) 1974 P Cr. L J 450;
(2) 1984 SCM R 521;
(3) 1984 SCM R 429;
(4) 1970 SCM R 299;
(5) 1981 SCM R 860;
(6) 1978 SCM R 357 and
(7) 1986 P Cr. L J 460 ' On the other hand, Mr. Abdul Ghafoor Mangi, learned AA.-G. Appearing for the State has stated that admittedly there are two versions of the occurrence and co-accused Jawed has sustained number of injuries in the fight. That the applicants had taken the plea of alibi during the investigation before the Investgating Officer and Investigating Officer and Deputy Superintendent of Police had opined that these applicants had not participated in the incident. The two officers were present in the Court and after consulting the case diaries they admitted that they had given the opinion that these applicants did not participate in the fight, however, in view of the fact that there are four casualties in the incident he submitted that it was for the Court to exercise the discretion.
15. I have given my serious thought to the contentions raised by the learned counsel for the applicants. Admittedly there are two versions of the incident and counter-complaint filed by co- accused Jawed has been brought on record, process has been issued under sections 307, 325, 148 and 149, P.P.C. No doubt complaint has been filed on 11-2-1989 but the fact remains that when co- accused Jawed and Aftab were arrested they had injuries on their person and such Mashirnama was prepared by Investigating Officer which is on record and both the co-accused were referred to Civil Hospital, Nawabshah and the medical certificates were issued which are also available on record which show that Jawed had eleven injuries while co-accused Aftab was having three injuries on his person. In the case of Khalil-ur-Rehman v. The State 1979 SCMR 168; where direct complaint filed by the accused came up before the Court about a month after the incident the explanation given for the delay was that police had refused to register the case, however, medical report showed that the petitioner and his father were examined at the night of incident who had received grievous injuries from firearm, therefore, it was observed by their Lordships of the Supreme Court; it was not a counter-version put forth for obtaining bail but there was some foundation for allegation made by him and, therefore, the Additional Sessions Judge was right in granting bail to the petitioners on the ground of counter-version and there was need for holding further inquiry in the circumstances hence the order of Single Judge cancelling bail of petitioners was set aside and petitioners were allowed bail.
16. ' Adverting to the plea of alibi taken by the applicants, the photo copies of admission card at Rural Health Centre Daulatpur and prescription slip issued by Professor Abdul Karim Abbasi, Heart Specialist shows that applicant Mansoor Ahmed was admitted as indoor patient at Daulatpur on 28-1-1989 and was discharged on 1-2-1989 when he appeared before Professor Abdul Karim Abbasi Doctor on 1-2-1989 who had examined him and given prescription. As far as B applicants Iqbal and Naimatullah alias Kundhal were concerned number of respectable persons were examined by the Investigating Officer who have supported the plea that they were present in Faisala at Daulatpur at the time of incident. The reports dated 10-2-1989 by S.H.O. And 13-2-1989 by S.D.P.O. Saddar Nawabshah clearly show that these applicants did not participate in the incident nor they were present at the place of Wardat. Even the S.H.O. And C Deputy Superintendent of Police who were present in Court and after consulting diaries in the Court stated before me that applicants were innocent. In the case of Muhammad Yousif v. Muhammad Anwar 1984 P Cr. L J 2325 the petitioner an accused of murder was admitted to bail on plea of alibi supported by medical officer and staff of Rural Health Centre. In the case of Muhammad Afzal v. Nazir Ahmed and others 1984 SCMR 429; the respondents were granted bail by the High Court as they were found innocent by S.H.O., A.S.P. Again by Deputy Superintendent of Police observing that although the opinion of police was not binding upon the Court but nevertheless, it was very much relevant in bail matters and makes out a case for further inquiry. In that case complainant filed petition before the Honourable Supreme Court for cancellation of bail but it was dismissed with an observation that:- "The relevancy to the question of bail the opinion of investigating agency in regard to the complicity of an accused person would depend upon the soundness of the material upon which it is based. If the investigation brings to light facts which may furnish prima facie a reasonable ground for believing that accused though named in the F.I.R. Is not guilty, the opinion of the Investigating Officer based on such facts will be relevant." ' and complainant's petition was dismissed. In the above-reported case the cases of Rehmatullah v. The State 1970 SCMR 299; Karamdin v. Muhammad Sharif 1975 SCMR 230 and Muhammad Rafiq v. Abdul Rehman 1979 SCMR 377 were considered. In another case on the findings of Investigating Officer that accused were not present at the scene of occurrence found by their Lordships based on sufficient material, the applicant was given benefit of doubt and granted bail in the case of Amir Ali and others 1984 SCMR 521.
17. From the above discussion in the facts and circumstances of the case I am clear in my mind that the case of applicants requires further inquiry with regard to their participation in the offence and therefore, I feel pursuaded to use the discretion in favour of the applicants consequently I direct that the applicants may be released on bail if they furnish solvent surety in the sum of Rs,1,00.000 (Rupees one lac) each and P.R. Bond in the like amount to the satisfaction of the trial Court or the Nazir of this Court.
18. ' I would like to make it clear that the observations made in this order are tentative in nature and the learned trial Judge shall decide the case uninfluenced by whatever is observed by me in the above order.
19. ' However, if any tangible evidence is brought on record, during the trial against the applicants, the trial Judge shall be at liberty to cancel their bail.
20. ' Criminal Bail Application No, 351 of 1989 is granted.