1. ' By the application the applicant seeks cancellation of to the Respondents Mir Muhammad, Yousuf and Khair Muhammad in Sessions Case No,506 of 1995 pending before the Court of IInd Additional Sessions Judge, Karachi.
2. Briefly the facts of the prosecution case are that on 14-11-1995 applicant/complainant alongwith his brothers namely Muhamamd Siddique, Karim Bux, Muhammad Ishaque and Usman were working in their garden, when at about 9-30 a.m. Respondents namely Mir Muhammad, Yousaf, 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 hand.
3. Immediately on their arrival they started firing on the complainant party 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 P.W. Muhammad Ishaque received bullets on his stomach and thigh and osman received bullet injuries on his left leg. The respondents and co-accused de-camped on their tractor. The motive of incident narrated by the complainant in the F.I.R. Is shown to be a dispute over a landed property. The complainant in the end of the F.I.R. 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 Sidique 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 Mohallah.
4. ' I have heard Mr. Shoukat 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.
5. ' Learned counsel for the applicant contends that bail application of accused Khair Muhammad was rejected by Dr. Qamaruddin Bohra, II Add. 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 Additional 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 Mrs. Shamshad Kazi, Incharge IInd Additional Sessions Judge, Karachi West, whereas respondent Mir Muhammad was granted bail by Mr. Javed Qaiser, Link Judge, of Ilnd Additional Sessions Judge, Karachi West on 16-4-1997.
6. Mr. Shaukat Hussain 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 ind the miscarriage of justice. According to him all the respondents are not only nominated in the F.I.R. With specific role of murdering 3 persons namely Muhammad Siddiq, Karim Bux and Muhammad Usman but have caused serious fire arm injuries to Complainant Abdul Ghafoor and P.W. Muhammad Ishaque. He contends that the ocular evidence is fully corroborated by the medical evidence. Post-mortem of deceased Muhammad Saddiq reveals that he has received 4 fire-arm 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 on the left thigh and Scapular region. Complainant Abdul Ghafoor had received fire armed injuries on the left side of the chest a vital part of the body and similarly Muhammad Ishaque did receive fire-arm injuries on the thigh and the stomach. He further argues that P.Ws. Muhammad Ishaque, Abdul Sattar, Ghulam Qadir, Muhammad Murad, Ghulam Rasool in their 161 and 164, Cr.P.C. Statement have fully implicated the respondents including respondent Yousif saying that they were armed with rifles and guns and caused injuries to the abovenamed deceased and 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, P.Ws.
7. Muhammad Ishaque, Muhammad Murad and Ghulam Qadir have been examined by the Trial Court and all these witnesses have fully implicated the respondents with commission of offences.
8. All of them have categorically deposed that they caused the death of above said deceased, and seriously injured complainant and P.W. Muhammad Ishaque. On recovery of weapon, it is argued that a rifle from respondent Mir Muhammad, a double 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.
9. Learned counsel lastly contends that the learned Incharge 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.
10. ' 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 had not come with clean hands. He further argues that respondent Yousaf is shown to be empty handed in the F.I.R. And no specific part 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.
11. ' Mr. M. Sarwar Khan, learned A.A.-G. 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 F.I.R. 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 P.W.
12. 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 Incharge 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 'Haj' and this practice of granting bail by the Incharge Judges have been discourage by the Superior Courts. In support of this contention he relies on case laws reported as 1989 PCr.LJ 191, 1986 SCM R 1321 and 1991 M LD 386.
13. ' Admittedly, in this ease 3 persons namely Muhammad Siddiq, Karim Bux and Muhammad Usman have been lost life and complainant as well as P.W. Ishaque received fire-arm injuries. In the F.I.R.
14. The complainant has nominated the respondents and co-accused Lal Muhammad, Respondent Mir Muhammad is said to be armed with rifle whereas respondent Khair Muhammad had shot gun and co-accused Lal Muhammad had hatchet. Though Yousuf is not shown to he armed with any weapon in the F.I.R. But eye-witnesses Ishaque, Murad, Abdul Sattar and Ghulam Qadir in their 161 and 164, Cr.P.C. Statements have fully implicated him, stating that he was armed with gun and used the same in commission of offfence. Deceased Muhammad Usman in his 161, Cr.P.C, statement recorded on 14-11-1995 has also fully implicated the respondents with specific roles. The medical evidence further corroborates the words of complainant and the witnesses. Complainant, P.Ws. 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 assessm ent of evidence on record is to be made. Respondent Khair Muhammad was initially refused bail by Dr. Qamaruddin Bohra, II Additional Sessions Judge Karachi West on 9-9- 1996 considering all the aspects of the case as such there was absolutely no justification for Mr. Faved Qaiser, Link Judge of II 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.
15. 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, Incharge II-Additional Sessions Judge, Karachi West, to the respondent Yousuf has ignored the important aspects of the case and had passed the same without applying mind and absolutely without any justification.
16. This practice of granting bail by the Incharge (Link Judges) has been disapproved by this Court in case of State v. Amanullah 1989 PCr.LJ 191 wherein practice of hearing and granting bail by Incharge Judge was not only discouraged but the said order was recalled, and bail was cancelled.
17. The Honourable Supreme Court in case of Muhammad Nabi and others v. Muhammad Munir Ahmed and others 1986 SCM R 1321 also set aside the order of by the Sessions Judge who was not trying case but merely attending to urgent matters during vacations. Honourable Supreme Court in case of Abdul Ghaffar v. Sakhi Sultan and 3 others 1987 SCM R 1556 also cancelled the hail granted to the accused by the High Court merely on the ground that the accused were nominated in the F.I.R. And the case was fully supported by the medical evidence. In case of Inayatullah v.
18. Muhammad Panah and others (1991 M LD 386) hail was also cancelled in the similar circumstances of the present case. Perusal of the impugned order in respect of grant of bail to respondent Yousaf show that learned Incharge IInd Additional Sessions 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 Mashiranama of place of Wardat mentions presence of three empty cartridges and shells of two empty bullets and also all the eye witnesses in their 161 and 164, Cr.P.C.
19. 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 two respondents as mentioned above is that since co-accused has been granted hail, 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 N.-W.F.P v. Zubair and 4 others PLD 1986 SC 173, has been deliberately ignored by the learned Incharge Judges who dealt with the matter, whereby all the successive bail applications filed by the respondents was 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.
20. 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 side the orders of granting bail to the respondents.
21. ' 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.