ABDUL HAMEED DOGAR. J.- By this application the applicant seeks cancellation of to the respondents Mir Muhammad. Yousuf and Khair Muhammad in Sessions Case No. 506/1995 pending before the Court of IInd Add!. Sessions Judge, Karachi.
2. Briefly the facts of prosecution case are that on 14-11-1995 applicant/complainant alongwith his brothers namely Muhammad Siddique, Karim Bux, Muhammad Ishaque and Usman were working in their garden, when at about 9:30 a.m. Respondents namely Mir Muhammad. Yousuf. Lal Muhammad and Khair Muhammad came over there on their tractor. Mir Muhammad had a rifle of 7 MM. Khair Muhammad had a 12 bore gun while Lal Muhammad had one hatchet in his had.
Immediately on their arrival they started firing on the complainant parts with intention to finish their lives and on account of firing his brothers Muhammad Siddique and Karim Bux died on the spot whereas he received bullet injuries on the left side on the ribs and PW Muhammad Ishaque received bullets on his stomach and thigh and Usman received bullet injuries on his left lag. The respondents and co-accused decamped on their tractor. The motive of incident narrated by the complainant in the FIR is shown to be a dispute over a landed property. The complainant in the end of the FIR has said that he was quite in senses while making statement before the police that the respondents accused with intention to kill them have murdered his brothers Muhammad Siddiq and Karim Bux by firing and caused injuries to him. Muhammad Ishaque and Usman. The incident was witnessed by Abdul Sattar, Muhammad Murad and other people of the Mohalla.
3. I have heard Mr. Shaukat Hussain Zubedi. Learned counsel for the applicant, Mr. Badar Munir, learned counsel for the respondents 1 to 3 and Mr. M. Sarwar Khan, learned A.A.G, for the State at length.
4. Learned counsel for the applicant contends that bail application of accused Kh air Muhammad was rejected by Dr. Qamareddin Bohra, IInd Addl. Sessions Judge, Karachi West (the Trial Judge) on 9-9-1996 whereas on 26-3-1996 he was granted bail by Mr. Jawed Qaiser, Link Judge, of IInd Addl.
Sessions Judge. Karachi West without having any fresh ground. He further argues that on 11-2-1996 respondent/accused Yousuf was also granted bail by Mis. Shamshad Kazi. I/C, IInd-Add!. Sessions Judge, karachi West, whereas respondent Mir Muhammad was granted bail By Mr. Laved Qaiser, Link Judge, of IInd Addl. Sessions Judge, Karachi West on 16-4-1997. Mr. Shaukat Hossain Zubedi further argues that bail orders of respondents are not only perverse, but have been passed by ignoring important facts of the case of the prosecution and have resulted in the mis-carriage of justice. According to him ail the respondents are hot twisty nominated in the FIR with specific role of murdering 3 persons namely Muhammad Siddiq, Karim Bux and Muhammad Usman bill have caused serious fire-arm injuries to complainant Abdul Ghafoor and PW Muhammad Ishaque. He contends that the ocular evidence is fully corroborated by the medical evidence. Post-mortem of deceased Muhammad Siddiq reveals that he has received 4 fire-armed injuries on the skull and other parts of the body whereas the deceased Karim Bux received 5 fire armed injuries and the deceased Usman received 3 fire-armed injuries cm tire left thigh and Scapular region.
Complainant Abdul Ghafoor has received fire armed injuries on the left side of the chest a vita! Part of the body and similarly Muhammad Ishaque did receive fire-arm injuries on the thigh and the stomach. The further argues that PWs Muhammad Ishaque, Abdul Sattar, Ghulam Qadir, Muhammad Murad, Ghulam Rasool in their 161 and 164 Cr.P.C, statements have fully implicated the respondents including respondent Yousuf saying that they were armed with rifles and guns and caused injuries to the above-named deceased had witnesses, he contends that 161, Cr.P.C, statement of Usman who expired in the hospital subsequently be considered as his dying declaration, in which statement he has also fully implicated the respondents with commission of the offences. Learned counsel further submits that the complainant. PWs Muhammad Ishaque, Muhammad Murad and Ghulam Qadir have been examined by the Trial Court and all these witnesses have fully implication the respondents with commission of offences. All of them have categorically deposed that they caused the death of above said deceased, and seriously injured complainant and PW Muhammad Ishaque. On recovery of weapon, it is argued that a rifle from respondent Mir Muhammad, a doable barrel gun from respondent Khair Muhammad and single barrel gun from respondent Yousuf were recovered. Irrespective of these, 3 empty' cartridges and 2 empty bullets of 7 MM were collected by police from the scene of offence. Learned counsel lastly contends that the learned In-charge Judges (Link Judges) while granting the bail to the respondents have ignored the principle laid down by the superior Courts. whereby the principle of grant of bail by Incharge Judge have been discouraged. He further relies on the case-law reported in PLD 1986 SC 173, 1987 SCM R 1156.
5. On the other side Mr. Badar Munir, learned counsel appearing for the respondents, controverts arguments advanced by the applicant's counsel He contends that in fact the place of wardat is situated in-Survey No. 103 of Deh Chitara belonging to co-accused Lal Muhammad as such the applicant has not come with dean hands. He further argues that respondent Yousaf is shown to be empty handed in the FIR and no specific pan has been assigned to him. And the respondent Khair Muhammad was rightly granted bail by the Incharge Judge as he was acquitted under section 249-A Cr.P.C, in a connected case of 13-(e) of Arms Ordinance. About respondent Mir Muhammad learned counsel argues that main ground for grant of bail was that the prosecution had examined only one witness during a period of 16 months of trial. He places reliance on 1996 SCM R 984 and prays for dismissal of the application.
6. Mr. M. Sarwar Khan, learned AAG appearing for the State, supports the arguments advanced by learned counsel for the applicant and states that all the respondents are not only nominated in the FIR but have caused fire-arm injuries to the Complainant party resulting in the death of Muhammad Siddiq, Karim Bux and Usman and causing injuries to the complainant and PW Muhammad Ishaque. According to him his ocular version is fully, supported by medical evidence, which shows the presence of so many fire-arm injuries on their person. He further argues that the learned In-charge Judges of the trial Court were not competent to grant bail to the respondents specially during a short period, when the trial Judge had proceeded for performing Maj' and this practice of granting bail by the In-charge Judges have been discouraged by the Superior Courts.
In support of this contention he relies on case-laws reported as 1989 P.Cr.L.J- 191, 1986 SCMR 2321 and 1991 M LD 386.
7. Admittedly in this case 3 persons namely Muhammad Siddiq, Karim Bux and Muhammad Usman have lost life and complainant as well as PW. Ishaque received fire-arm injuries, in the FIR the complainant has nominated the respondents aid co-accused Lal Muhammad, respondent Mir Muhammad is said to be armed with rifle witness respondent Khair Muhammad had shot gun and co- accused Lal Muhammad had hatchet. Though Yousuf is not shown to be armed with any weapon in the FIR but eye-witnesses Ishaque, Murad, Abdul Sattar and Ghulam Qadir in their 161 & 164 Cr.P.C, statements have fully implicated him, stating that he was armed with gun and used the same in commission of offence. Deceased Muhammad Usman in his 161 Cr.P.C, statement retarded to 14-11-1995 has also fully implicated the respondents with specific roles. The medical evidence further corroborates the words of complainant and the witnessess. Complainant. PWs Ishaque.
Murad and Ghulam Qadir in their evidence recorded in the Trial Court have also implicated the respondents, specifically stating, that they were armed with weapons and fired on the complainant party resulting in the death of Muhammad Siddiq. Karim Bux and Muhammad Usman and injuring complainant Abdul Ghafoor and Muhammad Ishaque. The contention of the learned counsel for the respondent requires deeper appreciation of the evidence which could only be done at the final adjudication of the case. For the purpose of grant or otherwise of bail only tentative assessment of ev idence on record is to be made, respondent Khair Muhammad was initially refused bail by Dr. Qamaruddin Bohra. IInd Addl. Sessions Judge Karachi West on 9-9-1996 considering all the aspects of the case as such there was absolutely no justification for Mr. Javed Qaiser. Link Judge of IInd Addl. Sessions Judge, to grant bail, specially while the trial Judge was on short leave and earlier bail application was rejected on merits and no fresh ground has arisen. Moreover the order granting bail is not only perverse but is in clear disregard of salient feature of case and legal principles. Similarly while granting bail Mrs. Shamshad Kazi. I'C. II-Addl. Sessions Judge. Karachi West, to the respondent Yousuf has ignored the important aspects of the case and has passed the same without applying mind and absolutely without any justification. This practice of granting bail by the In-charge (Link Judges! Has been disapproved by this Court in case of State v. Amanullah (1989 P.Cr.L.J. 191) wherein practice of earing and granting bail by In-charge Judge was not only discouraged but the said order was recalled, and bail was cancelled. The Hon be Supreme Court in case of Muhammad Sabi and Ors. v. Muhammad Munir .Ahmad and Ors. (1986) SCMR 1321) also set aside the order of by the Sessions Judge who was not tty ing case but merely attending to urgent matters during vacations. Hon'ble Supreme Court in case of Abdul Gaffar v. Sakhi Sultan and 3 others (1987 SCM R 1556) also cancelled the to the accused by the High Court merely on the ground that the accused were nominated in the FIR and the case w as fully supported by the medical ev idence, in case of Inayatullah v. Muhammad 'Panah <- others (1991 M LD 386) bail was also cancelled in the similar circumstances of the present case. Perusal of the impugned order in respect of grant of bail to respondent Yousuf show that learned In-charge IInd Additional Session Judge granted him bail only by mentioning some contradictions with regard to weapon of offence and that no empties were collected by the Police from the wardat. The mashimama of place of wardat' mentions presence of three empty cartridges and shells of to empty bullets and also all the eye-witnesses in their 161 and 164 Cr.P.C, statements have fully implicated him the commission of offence by saying that he was armed with gun and used the same. The main ground for grant of bail to the other to respondents as mentioned above is that since co-accused has been granted bail. Therefore, rule of consistency is attracted. In fact no ground is justifiable for the grant of bail.
While granting bail to the respondents the principles laid down in the case of State through Advocate General NWFP v. Zubair & 4 others (PLD 1986 SC 173) has been deliberately ignored by the learned In-charge Judges who dealt with the matter, whereby all the successive bail applications filed by the respondents w as to be heard and disposed of by Dr. Qamaruddin Bohra. IInd Additional Sessions Judge. Karachi, the trial Judge who firstly dealt with the bail application of respondent Khair Muhammad and dismissed the same on 9-9-1997. It is pertinent to note that in all the bail applications, respondents have not disclosed the fact of earlier dismissal of bail application of respondent Khair Muhammad.
8. So far as this case is concerned, I am of the considered view that in this case there are strong and essential grounds of setting aside the orders of granting bail to the respondents.
9. For the reasons stated hereinabove, the impugned orders of the trial Court are hereby set aside and the to the respondents Mir Muhammad, Yousuf and Khair Muhammad are cancelled. Copy of this order be sent to the trial Court with directions to cause the said respondents to be taken into custody.