1. This order will dispose of Criminal Miscellaneous No.27/B of 1991 (application for grant of after- arrest bail) and Criminal Miscellaneous No.131 of 1991 (application for cancellation of bail) by single order as both applications relate to same occurrence..
2. Abdul Majeed, Muhammad Rafiq, Ghulam Hassan, Ghulam Farid, 6hulam Haider, Din Muhammad, Muhammad Sharif have applied for grant of after-arrest bail in case under sections 302/307, 148, 149, P.P.C. Registered at Police Station Khairpur Tamiwali, at the complaint of Ghulam Haider son of Allah Yar while Haji Saddu has applied for the cancellation of after-arrest bail granted to Ghulam Qadir, Ghulam Muhammad, Ghulam Haider, Muhammad Bakhsh, Allah Rakha, Karim Bakhsh, Allah Yar, Ghulam Hasan, Muhammad Haji and Ghulam Hussain. The bail was granted by learned Judicial Magistrate ide order dated 10-9-1990. This order was maintained by learned Additional Sessions Judge, Bahawalpur by order, dated 4-3-1990 rejecting the application for cancellation of bail by Haji Saddu.
3. The prosecution version, briefly narrated in First Information Report is that Ghulam Oadir son of Khuda Bakhsh was a relation of the complainant. Lie was owner of agricultural land to the extent of half in Killa No.10 in Square No.7 in Revenue Estate Mouza Israni. Sardar Ali was the owner of half of Killa (southern). There was a dispute with respect to demarcation of the Killa between the two. The demarcation was conducted by the Revenue,, authorities wherein the line of demarcation was drawn. This demarcation was not accepted by Sardar Muhammad. On the fateful day of occurrence Ghulam Oadir came to complainant and asked him to accompany him to venue of occurrence for determination of dispute. Accordingly complainant in the company of Allah Yar, Lal Bakhsh alias Lalu, Maqbool Hassan, Ghulam Muhammad, Karim Bakhsh and Muhammad Bakhsh, son of Sultan, Allah Rakha went - to venue of occurrence at about 4-00 p.m. Alongwith them Muhammad Haji, son of Ghulam Muhammad (aged 10 years), Ghulam Hussain son of Ghulam Qadir (aged 11/12 years) went to the place of incident. When they reached the place of occurrence they found Sardar alias Saddu, Muhammad Sharif, Ghulam Farid, Ghulam Hassan alias Kalti, Ghulam Haider, son of Allah Rakha, Muhammad Ra(iq, Abdul Majeed, Bashir Ahmad, Din Muhammad all armed with hatchets. Iqbal, Ghulam Safdar, son of Juma, Abdul Ghafur, Manzoor son of Allah Rakha resident of Jhok Subhan, all armed with Sotas, were present. The moment the complainant party reached, the accused named above shouted that they would administer them a lesson and opened assault on them. Lal Bakhsh alias Lalu was injured with hatchet by Muhammad Sharif. He fell down. Ghulam Haider delivered hatchet blow on the back of the head of Lal Bakhsh Iqbal, Ghulam Safdar gave him Sota blows. Maqbool Hasan was injured by Ghulam Farid in between his right shoulder and neck. Muhammad Sharif, Sardar caused injuries on the head of Ghulam Oadir with hatchets, while Ghulam Hasan alias Kalu gave hatchet blow on his back. Muhammad Rafiq, Abdul Majeed, Ghulam Hasan gave hatchet blows to Ghulam Muhammad. Din Muhammad alias Dinu injured Karim Bakhsh on his head. Ghulam Farid hit him on his back. With hatchet while Ghulam Haider gave hatchet blows to Muhammad Bakhsh. Din Muhammad caused injury on his back. Muhammad Rafiq gave hatchet blows to complainant's father and complainant's brother. Ghulam Farid gave hatchet blow to Allah Rakha while Muhammad Rafiq, Bashir Ahmad, Abdul Majeed gave hatchet blows on his head. Lqbal alias Bala, Abdul Ghafoor, Ghulam Safdar alias Juma and Manzoor Ahmad injured all the members of the complainant party with Sotas. In this fight the complainant party in right of exercise of self-defence injured Ghulam Farid, Ghulam Hussain, Ghulam Haider, Muhammad Rafiq, Abdul Majeed. Lal Bakhsh and Maqbool Hasan succumbed to injuries at the spot. The motive for incident was that Saddu Muhammad alias Saddu wanted to forcibly occupy the land.
4. The version briefly stated in the complaint is that the complainant Haji Saddu is an old person; that he lived on the other side of river, while his sons, grandsons live in Mouza Israni the other-----sic--- -----demarcation. The demarcation,, was conducted by the Revenue authorities. The pillars,, were fixed by the Patwari on 3-6-1969 but those were demolished by Ghulam Qadir and his associates.
5. The matter was put to Biradari but without any effect. Eventually on 26-6-1990 Ghulam Qadir armed with gun and other accused armed with hatchets and sticks attacked them at about 4-00 after coming from connecting the accused with the commission of crime, the bail after arrest in murder cases is not granted. a distance of rive miles. Lal Bakhsh and Maqbool Hasan deceased came on two tractors and started demolishing the pillars. Ghulam Hasan, Ghulam Farid, his two sons Abdul Majeed, Muhammad Rafiq, his two grandsons Ghulam Haider son of Allah, his nephew advanced to stop them from demolishing pillars and asked them not to occupy the land by means of force. Thereupon Ghulam Qadir, Lal Bakhsh, Maqbool Hasan attacked Abdul Majeed, Ghulam Farid, Ghulam Haider, Ghulam Hasan, Muhammad Rafiq. Ghulam Qadir tried to pull the trigger of his gun but without success. Abdul Majeed snatched the gun from Ghulam Qadir. In this struggle the butt of the gun was broken and Abdul Majeed only snatched barrel. In exercise of the right of self-defence of person and property, the aforesaid persons caused injuries to assailants. Lal Bakhsh and Maqbool died. The complainant went on asking the assailants to give up their criminal pursuit but without any success. In this fight his two sons, two grandsons and one nephew named above received grievous injuries, which were dangerous to their life. They went to Police Station Khairpur from where they were taken to hospital and were subjected to medico-legal examination.
6. It was complained that on account of political influence, their case was not registered. They riled a complaint on 8-7-1990. The learned Judicial Magistrate after recording preliminary evidence issued bailable warrants in the sum of Rs.5,000 each. The accused/ respondents in application for cancellation appeared before Judicial Magistrate on .10-9-1990 and riled bail bonds in the sum of Rs.10,000 under the order of the Court dated 10-9-1990. Feeling aggrieved with the order of the learned Judicial Magistrate, dated 10-9-1990, Haji Saddu filed an application for cancellation of after arrest bail granted to respondents which was rejected by learned Additional Sessions Judge, Bahawalpur by order, dated 4-3-1991.
7. Feeling dissatisfied with the orders noted above Haji Saddu has filed the present application for cancellation of bail granted to respondents.
8. The learned counsel for the petitioners (in application for grant of bail) raised following points: It was argued that it was a case of two conflicting versions. The complaint was filed in which the accused were summoned. The complaint is pending adjudication before the learned Additional Sessions Judge, who has also taken cognizance of the police case under sections 302, 307, 148, 149, P.P.C. It was argued that the complainant party was in fact aggressor in this case and so the case of the petitioners was of further inquiry. Reliance was placed on Fazal Ahmad v. Ali' Ahmad and 3 others 1976 SCMR 391, Muhammad Jaffar v. The State 1987 SCMR 861 and Muhammad Jaffar v The State 1987 P Cr. L J 1338.
9. Secondly, 'it was argued that regardless of the fact that the case was fixed for the evidence of the parties the petitioners were entitled to concession of bail on the principle that the case of the petitioners was a case of further inquiry. Support was sought from Muhammad Ismail v.
10. Muhammad Rafique and another PLD 1989 SC 585, Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182.
11. Thirdly, it was argued that injuries caused to the petitioners' party were suppressed. Abdul Majeed received rive injuries, Muhammad Rafiq received eight injuries. The injuries on the person of Abdul Majeed were declared dangerous to life while one injury on Muhammad Rafiq was grievous in nature.
12. Mr. A.R. Tayyib appearing on behalf of the complainant in police case argued that the case was set down for recording the evidence of the prosecution on 7-4-1991. It was urged that at this stage it was not proper to grant bail to the petitioners in view of rule laid down in Allah Ditta and others v.
13. The State 1990 SCMR 307, Akmal Masih and others v. Salamat Masih and 4 others PLD 1988 SC 918, Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585. On merits it was stated that the names of the petitioners were mentioned in First Information Report and their roles were specified; that Muhammad Rafiq, Ghulam Haider and Muhammad Sharif were charged for causing injuries to Lai Bakhsh and Maqbool Hussain deceased.
14. While making submission with respect to the correctness of order of Judicial Magistrate dated 10- 9-1990 it was argued that respondent's (application for cancellation of bail) were charged of having committed offence under sections 307, 326, 325, 149, P.P.C. Which was punishable with life imprisonment and sentence of ten years' R.I. It was urged that Abdul Majeed received five injuries, which were declared dangerous to life. Muhammad Rafiq received eight injuries out of which one was grievous in nature. It was argued that the respondents were not entitled to concession of after-arrest bail in view of prohibitory clause in section 497 of Cr.P.C. It was next contended that the learned Judicial Magistrate had dealt with the matter in slipshod manner. He almost equated the plea for after-arrest bail with a pre-arrest bail under section 498, Cr.P.C. Elaborating his submission further it was argued that neither the provisions of section 91, Cr.P.C. Nor the provisions of section 204, Cr.P.C. Were relevant. According to him the moment the respondents had entered the appearance they should have been put to judicial custody and their application under section 497, Cr.P.C. Must have been examined. No such course was adopted. As such the impugned order could not be sustained. Reliance was placed on Allah Ditta v. Muhammad Iqbal and State 1984 P Cr. L J 1071, Wazir Khan and another v The State 1987 P Cr. L J 532.
15. Mr. A.R. Tayyib learned counsel for the respondents (in application for cancellation) supported the grant of bail. It was stated by him that the respondents were summoned by the Court through a bailable warrant in the sum of Rs.5,000 each. On 10-9-1990, the respondents submitted the bail bonds in the sum of Rs.10,000 in lieu of the order of the Court. The order of the Judicial Magistrate maintained by order of the learned Additional Sessions Judge was not open to any exception.
16. Reliance was placed on Mazhar Hussain Shah v The State 1986 P Cr. L J 2359.
17. Learned counsel appearing on behalf of the State opposed the grant of bail to Muhammad Sharif, Ghulam Haider and Ghulam Farid by saying that they were charged of causing injuries to the deceased. The remaining petitioners were vicariously liable.
18. I have heard the learned counsel for the parties at length and have perused the record with their assistance.
19. Having set down the basic facts of two versions, the points advanced by the learned counsel appearing on behalf of the parties, I feel inclined to note more facts of significance. In challan case Abdul Ghafoor, Ghulam Safdar and Manzoor Ahmad are minors with age of 7 years, 10 years and 12 years respectively. They were granted after arrest bail by the learned Additional Sessions Judge by means of order dated 1-9-1990. In complaint case Muhammad Haji and Ghulam Hussain are minors aged 10/11 and 11/12 years respectively Another fact is that in challan case Bashir Ahmad was granted after-arrest bail by learned Additional, Sessions Judge by means of order dated 21-1- 1991 and was murdered; the case was registered against Ghulam Haider complainant and two others. That case is reported to have been challaned.
20. I have perused the case-law cited by both the parties and the record of the case. It is apparent that the incident took place on account of a dispute with respect to Killa No.10 in Square No.7. The petitioners Nos.4, 5, 7 are accused of causing injuries to deceased Lai and Maqbool. Therefore, I am not inclined A to grant them bail. Their application stands rejected. Regarding the remaining petitioners at this stage it is not proper to deeply assess the case of the petitioners. Sufficient to say that there is sufficient material on the record to connect them with the commission of offence, punishable with death or transportation for life. Ordinarily when the Court comes to a conclusion that there do exist reasonable grounds for connecting the petitioners with the Commission of crime, the bail after-arrest in murder cases is not granted. There is yet another aspect of the case that the parties are closely related, have taken the law in their hands on an extremely trivial and inconsequential matter. On the ground of the conduct the petitioners are not entitled to concession of C bail. The authorities cited by both the learned counsel proceed on distinguishable acts and are not applicable to the facts of the present case, which has its own circumstances. Therefore. It is unnecessary to comment upon them.
21. Having dealt with the application for grant of after-arrest bail now I proceed to examine the application for cancellation of bail. It is clear from the record that the parties are deep relations.
22. There exists between them a dispute although very insignificant yet it had taken three human lives; that when Bashir Ahmad was released on bail he was murdered. It is apparent from the record that the parties are infected with criminal propensities and are prone to use violence for settlement of their contentious claims. Such persons are not p entitled to concession of bail. On this ground the order of the Judicial Magistrate as well as the order of the Additional Sessions Judge cannot be sustained. I accordingly accept the application for cancellation of bail except respondents 9 and 10 Muhammad Haji and Ghulam Hussain who are minors.; The application for cancellation of bail to their extent is rejected. The remaining respondents shall be taken into custody. The bail granted to minors in police case has not been assailed before this Court. This order does not cover their case.
23. In these terms these applications stand disposed of.
24. Before parting with this order I direct the trial Court to decide the police case as well as complaint case within one month of this order by holding day to day proceedings and without granting any adjournment. He shall also submit the progress report of police case as well as complaint case to the Deputy Registrar (Judicial) of this Court.