1. ' This is an application under section 497(5), Cr.P.C. Filed by the complainant/applicant Muhammad Usman in a case pending against the accused/respondents and others under sections 392, 307, 149, 295, 427, 428, 429 and 436, P.P.C., section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 13-D of the Arms Ordinance, pending before the learned find Additional Sessions Judge, Larkana.
2. ' The brief facts giving rise to the present application are that on 29-4-1987 complainant Muhammad Usman Gopang lodged report at Police Station Miro Khan, District Larkana, which reads as under:-- "It is complained that our caste-fellow Manzoor Ahmed Gopang resident of Gaji, of Taluka Mirokhan 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 caste-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 attacked from all the four corners. Threats were extended that anybody coming out will be killed. We by hiding ourselves, identified those persons to he, (1) Mir Khurshid Magsi, Chairman Shandad Kot duly armed with rifle,
(2) Noorullah Magsi with Klashnikov, (3) Attaullah Magsi with Klashnikov, (4) Mushtaque Ahmed Magsi with rocket-launcher, (5) Muhammad Khan Khoso with Klashnikov, (6) Sanwan Admani Magsi with Klashnikov, (7) Niazal Magsi with rifle, (8) S. Piral Magsi with rifle, (9) Muhib Admani Magsi with rifle, (10) Miran Admani Magsi with rifle, (11) Deedar Admani Magsi with rifle, (12) Ashiq Ali Admani Magsi with rifle, (13) Yousuf Admani Magsi with rifle, (14) Jhangal Admani Magsi with' rifle,
(15) Gul Hasan Katchar Magsi with rifle, (16) Mchhooh Kerozall Magsi with rifle, (17) Nizamuddin son of Azizullah Hasrani Magsi with rifle, (18) Allandino son of Malook Hasrani Magsi with rifle (19) Ismail with rifle, (20) Imamuddin Brohi Dacoit with Klashnikov, (21) Raza Muhammad Brohi with rifle, (22)
3. Ghulam Rasool Brohi with rifle, (23) Wadho son of Jaffar Mishani Magsi with gun, (24) Nazro son of Khamiso Magsi with gun, (25) Usman son of Saleh Hisbani Magsi with gun, (26) Saleh son of Usman Hisbani Magsi with gun, (27) Mohib son of Waris Hasrani Magsi with Kalashnikov, (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) Ali Gohar Magsi with rifle, (31) lnayat son of Gul Hasan Janwari with rocket- launcher, (33) Turab son of Mir Muhammad Janwari resident of Mehar with Klashnikov, (34) Akbar Janwari Dacoit with Klashnikov, (35) Gul Hasan son of Ali Hasan Janwari with Klashnikov, (36)
4. Manthar son of Gul Hassan Janwari with rifle, (37) Mumtaz Gul Hasan Janwari with rifle, (38) Dadan son of Gut Hasan Janwari with rifle, (39) Hussain Ali son of Inayat Janwari with rifle, (40) Abdul Hadi son of Panah Janwari with rifle, (41) Mehboob son of Amin Janwari with gun, (42) Janib son of Nihal Janwari with gun, (43) Bahadur son of Nihal Janwari with gun, (44) Ghulam Muhammad son of Mani Janwari with gun, (45) Muhammad Khan son of Hayat Janwari with gun, (46) Sher Khan son of Mehmood Janwari with Klashnikov, (47) Nooral son of Mehmood Janwari with gun, (48) Raza Muhammad son of Mehmood Janwari with gun, (49) Mehmood son of Nooral Janwari with gun,
(50) Moula son of Murad Janwari with rifle, (51) Mukhtiar son of Murad Janwari with gun, (52)
5. Mashooq son of Mehr Janwari with gun (53) Sherali son of Nahan Janwari with gun (54) Atta Muhammad son of Hayat Janwari with gun, (55) Shaman son of Hayat Janwari with gun, (56)
6. Muhammad Khan son of Jumo Janwari with gun, (57) Bashir son of Nihal Janwari with gun, (58)
7. Allah Bux son of Nihal Janwari with gun, (59) Abdul Rafique son of Sharif Janwari with gun, (60)
8. Buxan son of Sharif Janwari with gun, (61) Bago son of Gaji Janwari with gun, (62) Anwar son of Bago Janwari with Kalashnikov (63) Suhbat son of Akbar Janwari with gun, (64) Muhahat son of Akram Janwari with gun, (65) Allandindo son of Gulam Kadir Janwari with gun, (66) Muharram son of Allahando Janwari with gun, (67) Mchboob son of Ali Khan Janwari with rifle, (68) Ali Gul son of Ali Khan Janwari with gun, (69) Hussain son of Dil Murad Janwari with rifle, (70) Arab son of Gulan Janwari with gun, (71) Mithal son of Ghulam Hyder Janwari with gun, (72) Bachal son of Hidayat Ali Janwari with gun, (73) Latif son of Hidayat Ali Janwari with gun, (74) Umed Ali son of Hidayat Ali Janwari with gun, (75) Mashooq son of Buxal Janwari with gun, (76) Qurban son of Khadim Janwari with gun, (77) Khadim son of Alihux Janwari with gun, (78) Manthar son of Fakiro Janwari with rifle,
(79) Wadho son of Gaji Janwari 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 Janwari 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 Klashnikovs as a consequence whereof our thatched 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 Klashnikov at my nephew Muhammad Sidik. Accused Sanwan Magsi fired from his Klashnikov at my nephew Abdul Wahab. Accused Niazul Magsi fired from his rifle at my nephew Khamsio. Accused Attaullah fired his Klashnikov at my nephew Bashir. Accused Muhib Magsi fired from his rifle at my cousin Muhammad Khan.
9. Accused Yousuf Magsi fired from his rifle at my brother Ghulam Muhammad. Accused Ashiq Ali Magsi fired from his rifle at my nephew Abdul Karim. Accused Turab Janwari fired from his Klashnikov at my niece Mst. Hasina. Accused Akbar Janwari fired from his Klashnikov at my niece Mst. Halima. Accused Mumtaz Janwari fired from his rifle at my daughter-in-law Khurshid. Accused Gul Hasan Janwari fired from his Klashnikov at my daughter-in-law Noor Khatoon. Accused Ghulam Muhammad Janwari and Yousuf Magsi fired from their rifles at my brother Ghulam Muhammad. Accused Ashiq Ali Magsi fired from his rifle at my nephew Abdul Karim. Accused Turab Janwari fired from his Klashnikov at my niece Mst. Hasina. Accused Akbar Janwari dacoit fired at my niece Mst. Halim. Accused Mumtaz Janwari fired from his rifle at my daughter-in-law Mst.
10. Khurshid, Accused Gul Hassan Janwari fired from his Klashnikov at my daughter-in-law Noor Khatoon. Accused Ghulam Muhammad Janwari fired from his gun at my niece Mst. Khudeja.
11. Accused Muhammad Khan Janwari fired from his gun at my daughter's daughter Mst. Sughra.
12. Accused Nooral Janwari 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 Rchman. Accused Ismail Sario fired from his rifle at my brother's wife Mst. Zuheda. Accused Jhangal Magsi fired from his rifle at my niece Mst. Shahzadi. Accused Hussain Magsi fired from his rifle at my son's daughter Mst. Maryam. Accused Allahando Janwari fired from his gun at my niece Mst. Hakim. Accused Bachal Janwari and Atta Muhammad Janwari fired from their guns at my niece Shah Bihi as a consequence whereof they were injured. Manthar Jat and Jan Muhammad Brohi also received injuries. I alongwilh 1. Safar son of Miandad, 2, Abdul Hadi son of Khamiso,
3. Noor Ahmed son of Ahmed Din,
4. Haji Abdul Hague son of Muhammad Juman Gopang by caste were miraculously saved inside the mosque by giving dodge and sleeping in the basement side of the wall. The culprits 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, D.B.B.L. 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 calves of cows valuing at Rs,8,000, six goats valuing at Rs,2,000 each 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. Complain that for the God's sake justice he done to us."
13. ' After recording the F.I.R. Majority of the accused were arrested. Accused Muhammad Hassan moved an application for bail before the learned Sessions Judge but the same was rejected, and therefore, he approached this Court vide. Criminal Bail Application No, 152 of 1988 and the his application was allowed. Later on' accused, Mithal, and Wadho alias' Wahid Bux moved bail application before the Lind Additional Sessions Judge, Larkana, and they were allowed bail on the basis of the order granting bail to co-accused Muhammad Hasan. Respondents Mir Khurshid Ahmed, and Turrab Ali were also granted bail by the learned Lind Additional Sessions Judge on the plea of alibi, while accused Ran Muhammad, Piral and Deedar, respondents in Criminal No, 407 of 1988 were granted bail later on.
14. ' The complainant sent an application to his. Lordships, the Chief Justice of this Court raising grievance against the grant of hail to the respondents, which was processed on administrative side. The complainant also moved three different miscellaneous applications for cancellation of bail being Criminal Miscellaneous No, 763 of 1988 (Sukkur) Muhammad Usman v. Khursheed and others Miscellaneous No, 408 of 1988 (Karachi), Criminal Miscellaneous No, 866 of 1988 (Sukkur), Criminal Miscellaneous No, 407 of 1985 (Karachi) Muhammad Usman v. Raza Muhammad and others. The applicant had also filed Criniinal Miscellaneous No, 960 of 1988 Muhammad Usman v.
15. Wadh and Mohabbat at Sukkur but the same was withdrawn with permission to file fresh application vide order, dated 21-12-1988.
16. ' I have heard Mr. Sharfuddin Ada, learned counsel appearing for the appellant/complainant, Mr. Abdul Halim Pirzada, learned counsel appearing for Khursheed Ahmcd, respondent No,1, Mr. Muhammad Ali Shaikh, learned counsel appearing for respondent No,2 in Criminal No,408 of 1988 (Karachi) Piral and Deedar in person, while respondent Ram Muhammad has remained absent in Criminal Miscellaneous No, 407 of 1988 (Karachi) and Mr. Shaukat Zubedi, learned A.A.-G. Appearing for the State.
17. ' It has been contended by Mr. Sharfuddin Ada, learned counsel appearing for the pplicant/complainant that the incident was shocking in which more than one hundred persons had used Rocket-Launchers, Klashnikoves, rifles and other fire-arms and had burnt the whole village including household articles and goats and other cattle. It was further contended that they had fired at innocent villagers who took shelter in the mosque due to which number of persons died and many of them were seriously injured. That it was a case where there was pre-planned attack on the entire village and, therefore, provisions of section 149, P.P.C. Were fully attracted and, as such, the private respondents were not entitled to hail. In support of his contentions the learned counsel has relied upon:-- (1) PLD 1978 SC 236, (2) 1979 SCM R 91, (3) 1981 SCM R 849.
18. ' Messrs Abdul Halim Prizada and Muhammad Ali Shaikh, learned counsel have contended that respondents Khursheed and Turrab All were granted bail on the ground of plea of alibi which was supported by respectable persons. That under the law, the learned Additional Sessions Judge was entitled to grant bail to the respondents on the ground of plea of alibi and, therefore, the order granting bail to the respondents does not suffer from any infirmity.
19. ' Mr. Shaukat Zubedi, learned counsel appearing for the State has contended that in view of the fact that section 149, Cr.P.C. Was applicable to the facts of the present case and respondents Raza Muhammad, Piral and Deedar are alleged to have attacked the village and fired at deceased and witnesses indiscriminately, they were not entitled to bail by virtue of section 149, Cr.P.C. The order granting bail to them was, therefore, liable to be set aside and their bail may be cancelled. He has further contended that as far as respondents Mir Khursheed Ahmed and Turrab Ali were concerned, they had produced evidence regarding alibi before the learned trial Judge and, therefore, it will not be appropriate to cancel their bail at this stage. Respondents Piral and Deedar have contended that they are innocent and have been implicated due to enmity.
20. I have considered the contentions of the learned counsel. As far as Criminal Miscellaneous No, 407 of 1988 (Karachi) Muhammad Usman v. Raza Muhammad and others is concerned, according to F.I.R., the respondents were armed with fire-arms and had indiscriminately fired alongwith co- accused at the village with rocket launchers, Klashnikoves, guns, rifles, and other fire-arms with the result that the huts (houses), household articles and cattle were burnt. Thereafter the villagers took shelter in the mosque but they were fired at even in the mosque with the result that fourteen persons died and eight were seriously injured. According to F.I.R. The property worth lacs of rupees was taken away by A the accused. The manner in which the accused acted and fired at the village and villagers was shocking. There is an allegation that all the accused had come together duly armed with fire-arms and had fired at the village and villagers and, therefore, it cannot be said that there was no overt act assigned to the present In the case of Nazar Muhammad v. The State and another PLD 1978 SC 236; it was observed that:-- "The Courts on the basis of material placed before them, such as F.I.R. And the statements, recorded by police, held fully justified, even at bail stage, to go into question whether case of constructive liability was made out. This, however, is subject to the rule of caution laid down in Manzoor v. The State PLD 1972 SC 81 namely:-- ' It is obviously not correct to depend on the ipsi dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his hail. As repeatedly held by this Court, bail in non-bailable case is a matter within the discretion of the Court which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusation made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."
1. In the case of Muhammad Rashid v. The State 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 murderous assault on the complainant while his co-accused committed the murder of Manzoor Ahmad in prosecution of the common object of the said unlawful assembly, and therefore, provisions of section 149, P.P.C. Were attracted. The petitioner filed petition for special leave to appeal and their Lordships of the Supreme Court were pleased to observe that:- "The decision in the above referred case as clarified by this Court in Nazar Muhammad v. The State PLD 1978 SC 236; wherein it was held that the Courts on the basis of material placed before them, such as the F.I.R. And statements recorded by the police were justified even at bail stage to go into the question whether the case of constructive liability was made out subject, of course, to the rule of caution laid down in Manzoor v. State PLD 1972 SC 81."
21. In view of the above factual as well as legal position, I am of the considered view that respondents Raza Muhammad, Piral and Deedar were not entitled to bail.
22. ' As far as the order granting bail to co-accused Muhammad Hasan by my learned brother Nasir Aslam Zahid, J. (as he then was) which has been relied upon by the learned trial Judge, was concerned, it will be appropriate to refer to a passage from the order which reads as follows:-- "In this case, there is no allegation against the applicant that he had fired or killed or injured any person. Mr. Roshan Ali Solangi has also submitted that there is a doubt about the identity of the applicant. In the facts of this case I am of the view, a case for bail has been made out by the applicant.
23. ' Looking to the allegations against the respondents and observations made in the case of Muhammad Hasan it cannot be said that the case of the present respondents was identical specially when the respondents are named in the F.I.R. They are shown to have been armed with fire-arms and it is alleged that they alongwith co-accused had fired at the village and villagers indiscriminately. I, therefore, agree with the learned counsel appearing for the complainant/applicant and State, set aside the orders, granting bail to the respondents Raza Muhammad, Piral, and Deedar by the learned Sessions Judge, Larkana before whom the case is pending now, is directed to take necessary steps for the arrest of the above three accused/respondents.
24. ' However, as far as the case of respondent Mir Khursheed Ahmed was concerned, he has raised a plea of alibi, according to which he was in Quetta on 19-4-1987 and was guest of Agha Abdul Zaheer, Deputy Speaker, Balochistan Provincial Assembly and one Mr. Meer Fateh Umrani, M.P.A.
25. Balochistan Quetta, and certificates to this effect were produced. It was also contended before the learned trial Judge that accused/respondent Meer Khursheed Ahmed was a Chairman of Municipal Committee, Shandadkot and had presided over meeting held on 20-4-1987, such certificate from Chief Municipal Officer, Agenda of Meeting and Resolution passed in the meeting with signatures of the accused were also produced.
26. ' As far as respondent Turrab All was concerned, he was granted bail on the grounds of alibi as well as inconsistency with medical evidence and the learned A.P.P. Had also conceded to the grant of bail to him. In the case of Ch. Muhammad Shaft v. Ch. Muhammad Anwar Samma and another 1975 SCMR 219, wherein respondent Ch. Muhammad Anwar Samma was granted bail before arrest on the plea of alibi on the basis of affidavits filed by 24 members of Provincial Assembly, the complainant filed petition for special leave to appeal, it was observed by their Lordships of the Supreme Court that:-- "It will be seen that the alibi in this case comes from a large number of members of the Provincial Assembly, and accordingly, it would require serious consideration at the proper time. In view of the affidavits filed on us to fall within the ambit of subsection (2) of section 497 of the Code of Criminal Procedure, namely, a case requiring further inquiry'.
27. ' The petition was dismissed. However, it was observed that the petitioner can renew his application for cancellation of bail if so advised, when prosecution evidence, implicating the respondent, has been brought on record."
28. In the case of Akram Khan v. The State and another 1978 SCMR 242, wherein bail was allowed to the respondent on his plea of alibi, the complainant filed petition for special leave to appeal and their Lordships of the Supreme Court were pleased to observe that:-- "Now the learned Chief Justice, while granting bail to respondent Anwar Shah in this case, took into account a certificate issued to Anwar Shah from his Unit as well as the Unit Registrar (as he is employed in Defence Forces) that at the time of occurrence he was on duty at Peshawar Cantonment. The learned Chief Justice has, however, not commented upon the merit of the said certificate and granted bail to Anwar Shah saying that under the circumstances it would be just and proper."
29. In view of the factual as well as legal position, the Criminal Miscellaneous Application No, 408 of 1988 filed against Meer Khursheed andI Turrab Ali is hereby dismissed.
30. ' However, if any tangible evidence is brought on record against them, the complainant will he entitled to move the learned trial Judge for cancellation of their bail.