1. Granted.
2. This bail applications has been moved on behalf of akbar shah and Liaquat Shah who are both brothers and alongwith their third brother and co-accused Mehar Shah have been sent up to stand trial in a triple murder case registered under sections 302/307/114/34 PPC and 13-D Arms Ordinance as Crime No, 13/89 with Police Station Staurt Ganj, Shikarpur.
2. ' One Mst. Mehrunissa alias Inam Bibi had lodged the FIR alleging that she alongwith her two other sisters, namely, Akhtiar Bibi aged 22 years and Shama Bibi aged 20 years and their widowed mother Mst. Sasui aged about 55 years lived alone as her father had expired about 12 years back and that they had no brother, son or father. All the three girls are said to be unmarried. It is further alleged in the FIR that the present applicants and co-accused Mehar Shah who are all brothers are the first cousins of the complainant and both the parties are co-sharers in a mango garden which has been sold away by the accused party for the sum of Rs, 5.00 lass and that the complainant party had been demanding their share of money which annoyed the accused party and they had been threatening the complainant and her mother and sisters to kill them in case they continued demanding their share. Ft is also said that the fourth brother of the accused namely, Yasin Shah was annoyed with his brothers and was living with the complainant party. As per FIR on the date of incident at about 7 O'clock in the morning, the mother of the complainant and her younger sister Akhtiar Bibi were offering prayers in the house while the complainant and her other sister Mst.
3. Shama were sleeping in the bed when there was a knock at the door of the house and deceased Shama Bibi opened the door when they saw co-accused Mehar Shah alongwith the present applicants entering the house and started abusing and at that time Mehar Shah fired pistol shots at Mst. Shama who tried to escape but fell down. Thereafter Mehar Shah is said to have fired from his pistol at the deceased Mst. Sasui and Akhtiar Bibi who were at that time offering the prayers.
4. Mst. Akhtiar is said to have fallen down while Mst. Sasui ran out of the door and accused Mehar Shah followed her continuing to fire at her. On firearm reports one Waloo alias Arbab the maternal uncle of the complainant and other people collected there and saw deceased Mst. Sasui falling near the house of one Ghulam Kadir Pathan. The accused are then said to have run away. The complainant and others saw that Mst. Sasui had already died while Akhtiar Bibi and Shama Bibi were lying critically injured who were taken to hospital for treatment by the complainant's uncle Arbab. Mst. Akhtiar Bibi died on way. Mst. Shama was subsequently shifted to Civil Hospital, Karachi where she died on 20-5-1989. The complainant having no other male member herself went to lodge FIR. Police started investigation but subsequently as the complainant party apprehended that they would not get fair deal, the investigation was entrusted to CIA Police who recorded the further statements of complainant and PWs and ultimately the case was challaned. Bail application was moved before the trial Court which was rejected and, therefore, this bail application.
5. ' I have heard Mr. Aligoher Baloch, the learned counsel for the applicants and Mr. Yasin Khan Babar Advocate for complainant and Mr. Amanuilah Qureshi, the learned Advocate for AA.-G. For the State. Mr. Ali Goher Baloch has submitted that the present applicants have been falsely involved in the case on account of enmity which stands admitted. He has further submitted that the FIR shows that only co-accused Mehar Shah (for whom bail application has not been moved) was armed with the pistol and he fired at the said ladies. According to the learned counsel the daggers and hockey stick have been subsequently introduced by CIA police after seeing the post-mortem report of Mst. Sasui and Bibi Akhtiar who had sustained injuries with sharp cutting weapons and also hard blunt substance. The learned counsel has further placed reliance on an affidavit filed by Yasin Shah the fourth brother of the accused who has in his affidavit exonerated them and stated that it was some thieves who had entered the house and caused the injuries to the deceased. The learned counsel has also produced photostat copy of the dying declaration of Mst. Shama which, according to him, does not implicate the present applicants but only co-accused Mehar Shah has been implicated. The learned counsel for the applicants has submitted that this is a case of further enquiry. He has further submitted that there is inconsistency between the earlier statements of witnesses recorded under section 161 Cr.P.C. And their subsequent statements recorded by the CIA police under section 164 Cr.P.C. And, therefore, also they are entitled to grant of bail. He has placed reliance on the case of Anjum Nisar v. State PLD 1988 SC(AJ & K)
148. In this case the Hon'able Supreme Court of Azad Jammu and Kashmir had granted bail on the basis of the inconsistency in FIR, final police report and section 161 Cr.P.C. Statement. He has further placed reliance on the case of Muhammad Jafar v. The State 1987 P.Cr.L.J. 1338 wherein bail was granted by Fakhruddin H.
6. Shaikh J (as he then was) on the ground of there being two conflicting versions of incident existing in the case. The learned counsel has then relied on the case of Nasir Mehdi v. State 1985 P.Cr.L.J. 417 wherein also the bail was granted on account of inconsistency between ocular account and medical evidence. Lastly the learned counsel has relied on the case of Said Mir v. Ibadat Hussain and State 1981 SCMR 1105(1).
7. ' The learned counsel for the complainant Mr. Yasin Khan Babar has opposed the bail application and has submitted that the applicants are trying to protract the trial of the case by moving repeated transfer applications. He has further submitted that an early trial in the case was fixed on the application moved by the complainant party as they had only two eye-witnesses i,e, the two sisters; complainant and Mst. Shama of whom also Mst. Shama was in critical condition and ultimately she succumbed to the injuries leaving only the complainant as the eye-witness. He has further pointed out that 161 Cr.P.C. Statements of the witnesses were recorded at the earlier time, rather on the very date the incident had taken place and soon thereafter wherein all the witnesses had implicated the present applicants as well as co-accused Mehar Shah. Mr. Amanullah Qureshi has also opposed the bail application.
8. ' I have given anxious consideration to the submissions of the learned counsel and have perused the police papers. It may be observed that the postmortem report shows that deceased Mst. Sasui had sustained five injuries caused by sharp cutting weapon resulting in her death while Mst. Akhtiar Bibi had also suffered nine injuries out of which eight were caused by fire-arm while one is said to have been caused by hard blunt substance. The third deceased Mst.Shama who died subsequently at Civil Hospital, Karachi had received as many as six injuries. The mashirnama of vardat which was prepared on 7-2-1989, the very date when the incident had taken place, shows that eight empty pistol cartridges and two pistol spent bullets were recovered from vardat: This mashirnama also shows that two daggers were recovered from vardat. In view of this fact the submission of the learned counsel for the applicants that the daggers were introduced subsequently loses weight. Had the daggers not been there the mashirnama of vardat prepared on the very first day would not have mentioned the same. It may also be pointed out that the police had recovered hockey stick from applicant Liaquat Shah and pistol from accused Mehar Shah while the daggers were recovered from the place of vardat. These recoveries fully corroborate the case of the prosecution. With regard to the submission of the learned counsel for the applicants that the C.IA. Police has subsequently recorded the statements of P.Ws incorporating new facts, the police papers show that the CIA Police had recorded the 161 statements of the P.Ws on 19-2-1989 and 20-2-1989 wherein all the prosecution witnesses have implicated the accused and fully corroborated the case of the prosecution and thereafter their 164 Cr.P.C. Statements were also recorded wherein also they have made similar statements. With regard to the affidavit filed by Yasin Shah the brother of the accused it may be observed that this affidavit at this stage cannot be considered for the reason that in the first instance he is real brother of three accused and secondly that this affidavit does not show as to on what date this was sworn although the stamp paper on which this affidavit was written is dated 9-4-1989, i,e, about two months after the incident had taken place. It may also be observed that statement of this Yasin Shah was recorded by CIA Police under section 161 Cr.P.C. On 20-2-1989 wherein also he has supported the prosecution case. The statement of this Yasin Shah was also recorded under section 164 Cr.P.C. On 11-3-1989 and in this statement also he has supported the prosecution case.
9. His affidavit, therefore, at this stage would not be of any avail to the, applicants. Moreover even if this affidavit is taken into consideration then also the complainant's evidence is very much available against the applicants and applicants would not be entitled to grant of bail in view of the law laid down by the Hon'ble Supreme Court in the case of Sanaullah and 3 others v. State 1983 SCM R 15.
10. ' The learned counsel for the applicants had laid much stress on the photostat copy of the dying declaration of Mst. Shama which has been filed with the present bail application. It may be observed that Mst.Shama had been examined under section 161 as well as 164 Cr.P.C. Wherein she has fully corroborated the prosecution case. Even in this dying declaration she has not specifically excluded any of the accused but has stated that accused Mehar Shah was armed with pistol and accused Liaquat Shah had come to their door and that she had opened the door which facts are not inconsistent with the prosecution case. Moreover it may further be observed that this dying declaration is recorded at 0800 hours at R.B.U.T. Hospital, Shikarpur and is signed by S.D.M.
11. Shikarpur on 7-2-1989. There is no certificate of doctor attached to the said dying declaration. It has been pointed out by the learned counsel appearing for the State that the deceased Mst.Shama was received in the hospital at 0810 hours and therefore, her dying declaration could not have been recorded at the time earlier to that. It is also pointed out that the dying declaration is not countersigned by the doctor incharge.
12. ' Lastly it is contended by the learned counsel for the applicants that complainant in her FIR has not said anything about the present applicants being armed with hockey stick and daggers. Explaining this the learned counsel for the ' State has poitited out that it may be kept in mind that in the household there lived one widow, with three unmarried young daughters and the complainant who is only an unmarried young girl had seen her mother and one sister being killed in her presence while the other sister being injured would be in such a state of mental agony that she would not be expected to be able to give each and every detailed particular specially when these ladies had no father, brother or son to whom they could look for protection and safeguard. Moreover it may also be observed that the FIR was lodged within 20 minutes of the incident.
13. ' As far as the case-law cited by the learned counsel for the applicants is concerned, with all respects it may be observed that in a criminal case each case depends on its own special features and attending circumstances and no two cases can be treated alike. Reliance is placed on the case of Sanatta and another v. State 1982 SCMR 208 wherein their Lordships have held:- "As for the argument of the learned counsel, based upon the dicta in PLD 1972 SC 81, that contradictory versions as to the specific roles assigned to the accused necessitated further enquiry into the guilt or otherwise under section 497(2) of the Cr.P.C. Entitling the petitioners to the grant of bail, and that in the instant case the learned Judge of the High Court has narrowed down the scope of section 497(2), Cr.P.C., we consider that the above-cited ruling does not help the petitioners. The dicta in criminal cases have to be read in the light of the peculiar facts and circumstances of each case, and the circumstances in the present case are not similar to the facts and cicumstances of the above-cited case. In the instant matter the F.I.R. Assigns specific roles to the petitioners, and the fact that the medical report does not agree with the account of eye- witnesses of the specific blows delivered by the respective petitioners might well be a relevant factor at the trial, yet at this stage this aspect of the matter cannot be gone into very deeply.
14. Moreover, as pointed out by the learned Additional Sessions Judge in his order dated 26-1-1977, the incriminating weapons were recovered from the petitioners, and according to the report of the Chemical Examiner, they were also found to be stained with blood. He also pointed out that apart from this, sections 148 and 149, PPC also prima facie, stood attracted to the facts of the case."
15. ' Moreover, in the present case the statements of deceased Shama Bibi and Yasin Shah recorded under section 164 Cr.P.C. Fully implicate the accused wherein they have stated that applicants had the hockey stick and knife in their hands. In these statements they have specifically stated that applicant Akbar Shah gave knife blows to Mst.Sasui while applicant Liaquat Shah gave hatchet blows. P.W. Arbab has also made such specific statements in his statement recorded under section 164 Cr.P.C. These facts are fully corroborated by medical evidence.
16. ' From the above discussion I am of the view that there is sufficient material on record to link the present applicants with the commission of the offence and accordingly the bail application is rejected.