1. ' This application has been moved for cancellation of to the present respondents Nos. 1 to 4 who are accused in the triple murder case registered as Crime No, 19 of 1988 with Police Station Dodapur under sections 302/149, P.P.C. And 13-D, Arms Ordinance. The prosecution case as per the F.I.R. As lodged by complainant, who is the present applicant is that he owns a Passenger Bus on which his son deceased Sooreh is the Munshi. It is further stated in F.I.R. That on every Ramzan Eid the complainant takes his bus to the Dargah of Qalandar Shahbaz for ziarat and that on the date of occurrence also the complainant alongwith his deceased son Sooreh and cousin deceased Jabal Khan and relative deceased Raban and other P.Ws. Left for ziarat on the said bus and when they reached at the distance of about 2 K.M. From Ghulam Shah that they saw accused Safar armed with Klashnikov and the present respondent Nos. 1 to 4 armed with guns who signalled the bus to stop. The accused party challenged the complainant saying that they were always being insulted by the complainant party on the trespass of their cattle and that they will take revenge. Accused Safar is alleged to have fired the burst from his klashnikov hitting deceased Sooreh on the face, accused Muhammad Panah fired at deceased Jabal while other accused fired at deceased Raban. The accused then ran away. The complainant then went to their Nekmards Habibullah Khan and Juma Khan and with them he came to the Police Station to lodge the report.
2. ' The police first arrested and challaned accused/respondent Muhammad Panah, Abdul Raheem and Soomar thereafter accused/respondent Ghtilam Nabi was subsequently arrested and sent up under a supplementary challan and lastly accused Safar was arrested and sent up under another supplementary challan. All the three challans were given different Sessions Case Nos. i.e, 288, 366 and 378 of 1988. The bail applications were moved for the said accused. Bail application for co- accused Safar was rejected while the present respondent Nos. 1 to 4 were granted bail by the IInd Additional Sessions Judge, Jacobabad vide order passed on 22-3-1989. The complainant has moved this application on 10-6-1989.
3. ' I have heard Mr. Bilawal Khan Buriro Advocate for present applicant. Mr. Sardar Khan Lashari the Advocate for the respondent Nos. 1 to 4 and Mr. Muhammad Siddique Kharal the Addl. A.-G. Sindh.
4. The order of the trial Court shows that the case of accused Abdul Rahim, Soomar and Ghulam Nabi has been considered together as they are alleged to have fired at deceased Raban. Deceased Raban is shown to have sustained 4 gunshot injuries of which 3 are wounds of entrance and the fourth is wound of exit. The learned counsel for respondents has submitted that it is yet to be determined as to which of the said 3 accused had caused the fatal injuries and therefore their case requires further enquiry. In addition to this the trial Court has also taken into consideration the fact that the age of accused Abdul Rahim is about 70 years. The trial Court has also placed reliance on the face sheet prepared by the police. I have considered the submissions of the learned counsel on the above points. The facts as disclosed in the F.I.R. Would show that all the five accused had been armed with Klashnikov and guns and all of them had fired at the complainant party. The common intention and preconcert is very much spelt out. The accused in such case cannot escape the liability for the role attributed to them. The trial Court was not justified to admit them to bail. Reliance can be placed in the case Hafiz Imam Bakhsh v. Muhammad Bakhsh etc. 1979 SCM R 197 wherein the Hon'ble Supreme Court had cancelled the bail observing; "This case was finally registered under section 302/307/34, P.P.C., against all the four accused. In the circumstances the High Court while declining to express any opinion on the merits, was not justified at the same time in observing that the fatal injury was not attributed to anyone and that it shall be premature at this stage if all the accused were present and had participated or not.
5. According to the version of the prosecution and eye-witnesses the injuries to and the consequent death of the deceased was in furtherance of the common intention of all the respondents who were vicariously liable for the offences."
6. The ground of age on which the bail was granted to accused Abdul Rahim is also not sustainable in law. In the first instance there is no authenticated document on record to show that he said accused was of the age of 70 years and secondly the fact of his being of 70 years of age cannot by itself be a ground for grant of bail unless he is medically certified to be infirm or sick or that his remaining in jail would be detrimental to his health. Reliance can be placed on the case of Haji Reahimullah v. The State and another 1970 SCM R 514 and the case of Zarin Khan v. The State 1980 SCM R 305 wherein it was held that the accused will not be rendered infirm in case of illness which needs treatment only.
7. ' As regards the case of accused Muhammad Panah he is alleged to have fired at deceased Jabal.
8. He has been granted bail on the ground of alibi as and it is alleged that on the same day another F.I.R. Was filed showing that this accused had caused the death of his wife at 1.0 p.m. In his own house which is at a distance of about 25 K.M. From the place of occurrence and therefore he could not be present at the time (11.45 A.M.) when the present incident is alleged to have taken place. The distance of 25 K.M. Can certainly be covered within an hour if one has some faster means of transport such as Motor Cycle or Motor Car. Such plea of alibi has still to stand the test of scrutiny on the basis of evidence. As against this the name of the said accused is mentioned in the F.I.R. And specific role of firing at deceased Jabal has been attributed to him. In these circumstances he too does not have a case for grant of bail. Reliance can be placed on the cases of Bahadur v.
9. Muhammad Latif 1987 SCM R 788 and Tahir Hassan Hashmi v. The State 1990 SCM R 326.
10. The learned counsel for respondents has urged that the F.I.R. Was filed after the delay of about 7 hours. This delay stands explained in the F.I.R. As the complainant has stated that he had first gone back to his village to inform the Nekmards and then, taking them with him, he came to the police station to lodge the F.I.R. The distance is said to be 22 K.Ms. The learned Addl. A.-G. Has supported the application and has submitted that this is a fit case for cancellation of bail.
11. For the reasons mentioned above, the impugned order of the trial Court is set aside and the to the respondent Nos. 1 to 4 is cancelled. The copy of this order be sent to trial Court with directions to cause the said respondents to be taken into custody.
12. Bail cancelled.