' Muhammad Amir and Niaz Muhammad (respondents in this Criminal Miscellaneous) were granted bail by the learned Additional Sessions Judge in a double murder case on 31-12-1988 whereas Muhammad Ayub etc. (respondents in Criminal Miscellaneous No, 116/B of 1989) were allowed bail vide order dated 7-2-1989. The complainant has moved applications for the cancellation of bail.
2. One Alamdar of the respondents party was murdered and for it, it appears, a brother of Safdar Hussain deceased of the ,present case and others were involved. Thereafter, Muhammad Ashraf of the petitioner's party was murdered and his brother Liaqat Hussain was injured. The case was tried by the Speedy Trial Court and on 30-11-1988 Hassan Raza All and Pehalwan Khan were sentenced to death, their co-accused Nasir Hussain to imprisonment for life and the other two co-accused, namely Sajjad Hussain and Muhammad Ayub, who are respondents in Criminal Miscellaneous No,116-B of 1989, were acquitted. In this background of enmity the present occurrence took place at 7 a.m on 19-74988 in the street of the village in which Subedar Muhammad Hayat and Safdar Hussain died at the spot while Noor Hussain, Farman Ali and Ghulam Mustafa P.Ws. Were injured.
The F.I.R. Was lodged at 9-15 a.m. The same day by Noor Hussain petitioner.
3. The version in the F.I.R. Was that the two deceased alongwith Anwar P.W. Were going in the street and the respondents alongwith Muhammad Ishfaq, Iftikhar, Abid Hussain and Shahid Hussain and the four absconder accused, were lying in ambush. They came out of the shop of Ayub respondent and the assault was mounted by Ishfaq absconder accused who alongwith Iftikhar Hussain and Abid Hussain was armed with kalashnikoves and Shahid Hussain was carrying a rifle. It is also in the F.I.R. That the present respondents were also carrying firearms. The two deceased were injured by Ishfaq and Iftikhar absconders who fell to the ground and it is further in the F.I.R. That thereafter the present respondents had also been firing on the dead bodies. A shot fired by Ishfaq had hit Subedar Hayat deceased as well as Noor Hussain petitioner who ran back and went up the roof of a house and from there saw the remaining part of the occurrence. It is further in the F.I.R. That from the shop the respondents and their co-accused advanced towards the house of Ghulam Mustafa P.W. Who was chased in a field and injured with kalashnikove.
4. The learned Additional Sessions Judge granted bail to the respondents on the grounds that only ineffective firing had been attributed to the respondents, no overt act had been ascribed to them and that there was no post-mortem injury to the two deceased and thus the version that the respondents had fired at the dead bodies was not correct. He, therefore, concluded that it was a case of further inquiry.
5. Learned counsel for the petitioner/complainant has contended that only on the ground of the case being of further inquiry bail could not have been granted unless the Court had also come to a definite conclusion that there were no reasonable grounds for believing that the accused had committed a non-bailable offence. He referred to Arbab Ali v. Khamiso 1985 SCMR 195 to support his contention. The law on bail on the point of 'further inquiry' seems to have been conclusively settled by their Lordships in this report. Simply that the case is one of 'further inquiry' does not entitle the accused of a non-bailable offence automatically to bail unless it has also been definitely concluded by the Court granting bail that there are not reasonable grounds to believe that the offence has been committed. This exercise was not done by the learned Additional Sessions Judge.
6. Learned counsel for the petitioner also contended that the occurrence was of broad daylight, the F.I.R. Was promptly lodged, the respondents and their co-accused had been named, four of the co- accused were still at large, there were three injured P.Ws. And in the background of enmity the vicarious liability, even if no particular injury had been ascribed to the respondents, did not entitle them to the grant of bail. He referred to Muhammad Rashid v. State 1979 SC MR 92 in this respect.
He seems to be on a sound footing in this regard as well.
7. Of course, according to the F.I.R., after the two deceased had fallen, the respondents were alleged to have fired at their dead bodies. But the use of word `dead bodies' is to be considered only figuratively because there was no time gap between the fatal shots fired by the two absconder accused and the respondents. The only time which, at the most, can be said to have elapsed was that taken by Noor Hussain P.W. To go to the house top from the spot from where he witnessed the later part of the occurrence. Hence there was no question of any post-mortem injury; whatever injuries were caused were ante-mortem. The site plan has been examined in Court and it shows that the house of Ghulam Mustafa P.W. Is about two hundred Karams from the shop of occurrence.
And so a determined and concerted action was initiated, so to say, to finish some at the spot near the shop and even to appropriately handle Ghulam Mustafa P.W., their relatives, as well, at a distance of about two hundred Karams. In such circumstances, it could not have been said that there were no reasonable grounds to believe that the respondents were involved or they were not vicariously liable. In this connection, it is to be mentioned that Hayat deceased was having six injuries, four being entry wounds; Safdar Hussain had eighteen injuries, eleven being entry wounds and Noor Hussain and Farman Ali P.Ws. Had one injury each while Mustafa P.W. Had four injuries, three being entry wounds. Not only this, but according to the site plan the nearby wall was sprayed with bullets and sixteen crime empties were recovered from inside the shop and ten from near the dead body of Safdar Hussain. It seems to have been an affair at a large scale.
8. Learned counsel for the respondents referred to PLD 1987 Quetta 194 Muhammad Hashim v. Nabi Dad etc. To canvass the point that cancellatin of bail was to be allowed only when the order of the learned lower Court was arbitrary, capricious and unsustainable. In view of the legal and factual position, asi, discussed above, the order of the learned Additional Sessions Judge cannot but' be characterised as arbitrary, capricious and unsustainable.
9. For what has been discussed and concluded above, the to the respondents is cancelled. .