1. Miscellaneous Application No,338 of 1997 is granted subject to all just exceptions, Miscellaneous Application No,339 of 1997 is also granted.
2. I intend to dispose of both these bail applications with this common order as both the applications are out-come of same F.I.R., and order of learned Additional Sessions Judge, Shandadkot, dated 7-5-1997.
1. Accused/applicants Muhammad Bux and Asghar Ali approached the learned trial Court for bail which was rejected by learned Additional Sessions Judge, Shandadkot vide his order, dated 7-5- 1997, hence they have approached this Court for concession of bail.
2. ' Brief facts of the case are that Muhammad Ibrahim complainant on 1-5-1996 registered the F.I.R.
3. With Police Station, Sijawal stating therein that on the day of incident is the morning, he alongwith Himmath Ali son of Muhammad Saffar Chandio, Gulzar son of Ali Murad, Ghulam Rasool son of Muhammad Ismail and Khabar son of Khair Muhammad all by caste Chandios proceeded together towards Ratodero for their private work. In the evening time, they boarded a bus from Ratodero towards their village and alighted from the same near the bridge of 'Sim Shakh' when at about 5 p.m. Muhammad Bux son of Dilijan, Asghar Ali son of Meer, Mehboob son of Usman having guns in their hands, Sarwar son of Meer armed with rifle and all Deenaris by caste were standing there. Sarwar challenged them that they have caused injuries to their relatives and complainant replied them that his relatives have not fought with their relatives upon which Sarwar fired from his rifle which hit Himath Ali who fell down. Muhammad Bux, Asghar Ali and Mehboob fired from their guns which hit Gulzar P.W., complainant party raised cries thereafter accused/culprits made their escape good with their weapons. Complainant Ghulam Rasool and Khabar found that Himath Ali was having fire-arm injuries and was bleeding and Gulzar was also bleeding from his injuries caused on his hand and abdomen. Complainant party took the injured for treatment to the dispensary at Miro Khan where Himath Ali expired.
4. ' Complainant leaving Ghulam Rasool and Khabar with injured Gulzar and deceased Himath Ali, lodged the F.I.R. Alleging therein that accused/culprits with their common intention have caused rifle shots to Himath Ali and has caused his death whereas other accused have caused gun shot injuries to Gulzar with intention to cause death. After lodging of the F.I.R., police during investigation arrested the accused/applicants and police is alleged to have recovered S.B.B.L. Gun of .12 bore at the pointation of accused Asghar Ali and SBBL gun of 12 bore at the pointation of Muhammad Bux.
5. ' Mr. Ghulamullah Mahoto learned counsel for applicant Muhammad Bux contends that allegation against accused/applicant Muhammad Bux is that he alongwith Asghar Ali and absconding accused Mehboob have fired from their guns which resulted injuries on the person of P.W. Gulzar; that according to medico-legal certificate Gulzar has received two injuries whereas prosecution case is that three accused Asghar Ali, Muhammad Bux and Mahboob have caused fire arm injures on the person of Gulzar and it is not clear as to whose fire has hit the injured Gulzar. Mr. Mahoto further contends that on 22-1-1997 while deciding Bail Application bearing No,147 of 1996 filed on behalf of applicant Muhammad Bux Deenari the application by consent was not pressed but the following directions were given by this Court:- "(1) That the Trial Court shall finalize the proceedings for declaring absconders those accused who are not before the Trial Court at the earliest possible time, preferably within two months.
(2) That the Trial Court shall record evidence of complainant and one witness within two months after framing of charge.
(3) That after recording evidence of two witnesses as mentioned above or in case of non- compliance of this order, the applicant would be at liberty to move fresh bail application."
6. ' Learned counsel for the applicant Muhammad Buz has also placed reliance on 1986 PCr.LJ 2736, 1986 PCr.LJ 2322 and 1987 M LD 1759.
7. ' Mr. Ghulam Hyder Baloch learned counsel for applicant Asghar Ali has adopted the arguments of Mr. Ghulamullah Mahoto.
8. ' Mr. Abdul Fateh Mughal learned counsel for A.A.-G. For State opposed the bail applications and stated at the Bar that accused/applicants have been assigned the specific role of firing at Gulzar who has received two fire arm injuries on his person, one is on his hand and other is on his abdomen. The evidence has not yet been recorded by the Trial Court; that incident is of day time and police has also effected recoveries of shot guns at the pointation of accused/applicants and that 164, Cr.P.C. Statements of the prosecution witnesses have been recorded by the Magistrate in which P.Ws. Have implicated the accused/applicants .
9. ' I would like to discuss the points raised by Mr. Mahoto learned counsel for applicant Muhammad Bux. So far the observation of this Court in its order, dated 22-1-1997, the learned Trial Court in the order, dated 7-5-1997 has stated that in the month of March, 1997 his predecessor was transferred and he has taken the charge in the month of April, 1997 and that every effort is being made to start with the trial of the case and without physical attendance of the accused, charge cannot be legally framed. In this matter, Inspector-General Prisons, Sindh is also asked to make arrangements for the production of applicants/ accused and Trial Court has taken efforts to comply with the observations made by this Court. There is no negligence or delay on the part of the Trial Court whereas under trial prisoners are to be produced by the jail authorities/ police and without their physical attendance before the Court, legally learned Trial Court cannot frame the charge. In my humble opinion with due respect to the observations of learned Judge of this Court; I am of the firm opinion that learned Trial Court has taken appropriate steps to comply with the observations.
10. ' Mr. Mahoto has referred 1986 PCr.LdJ 2322. In this matter, five accused and 9 other co-accused participated in the occurrence, 2 of the 5 accused were not attributed any injury to deceased whereas one was attributed 'Sota' blow to a witness though armed with hatchet and both these accused were assigned role of causing hatchet blows to a witness who was found having only one injury. The facts of this case are quite different and distinguishable from the facts of the case in hand.
11. Admittedly, accused/applicants were armed with guns and they have fired at P.W. Gulzar who has received the fire arm injuries which are certified by the Medico-Legal Officer. In my humble opinion, this authority is not favourable to the case of the applicants.
12. ' 1986 PCr.LJ 2736. In this matter, the learned Judge considered that part attributed to the two petitioners was that they injured the prosecution witnesses, the injuries were found simple. This fact was not controverted by the learned counsel for State and the petitioners were granted bail. With all humbleness at my command and with due respect to the authority, the facts of the case are not mentioned so far the weapons of offence is concerned and bail was granted to the applicants as the injuries were found simple whereas in this bail application, both accused/applicants are alleged to be armed with guns and have fired with intention to cause the death of injured Gulzar who received injuries on his abdomen and on his hand. The intention of a person is to be gathered from his action. Accused/applicants being armed with guns and with their common intention have caused fire arm injuries during day time in the result of which one person Himath Ali has lost his life and Gulzar has received injuries by fire-arm.
13. ' 1987 M LD 1759. In this case petitioners were granted bail on the ground that grievous injury was not attributed to any one of them whereas allegation in the F.I.R. Was that both of them gave 'Sota' blows to Muhammad Bux one after other hitting his left hand. I am afraid this authority is also not applicable to the case of present accused/applicants. The learned Judge has granted bail considering the facts that the accused/applicants were armed with ' Sotas' and 'Pahoras whereas in this case accused/applicants were armed with guns and have caused fire-arm injuries on the person of Gulzar and Himath Ali has lost his life after receiving fire-arm injuries. This authority is not also I helpful and applicable to the facts of the present case.
14. ' I have considered the material placed with the case and have also perused the authorities, discussed here in above. The incident has taken place at about 5 p.m. Whereas F.I.R., was lodged at 7 p.m. And the distance between the place of incident and the Police Station is about 10-11 kilometers. In the incident, one person Himath Ali has lost his life by receiving fire-arm injuries at the hands of Sarwar whereas Gulzar has received the injuries by fire-arm at the hands of two accused/applicants whereas Mehboob other accused is shown absconder. The injuries have been certified by the doctor to have been caused with fire arm which were located at the hand and abdomen of Gulzar. Subsequently, police has also recovered 12 bore shot gun each at the pointation of accused/applicants Muhammad Bux and Asghar Ali during investigation. The accused/applicants have been charge-sheeted to face trial for an offence under section 302 read with section 34, P.P.C. And 324 Qisas and Diyat Ordinance. Section 34, P.P.C. Reads as under:--- "34, P.P.C. Acts Gone by several persons in furtherance of common intention.--- When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone."
15. ' The provisions of the Criminal Law (Second Amendment Ordinance, 1995) with regard to section 324 is as under:- "324. Attempt to commit Qatl-i-Amd.--- Whoever does act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd, shall be punished with imprisonment of either description for a term which may extend to ten years; and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused; ' Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years."
16. The trial Court has given very cogent and sound reasons for not recording the evidence of witnesses within two months, as desired by this Court. The accused/applicants have been assigned specific role of firing at Gulzar in F.I.R. As well as in their 164, Cr.P.C. Statements recorded by the Magistrate during investigation coupled with recoveries as mentioned here in above.
17. ' The case-law cited by the learned counsel for the applicants, in my humble opinion, is not applicable and favourable to the facts of the present case. Prima facie, there are reasonable grounds to believe that accused/applicants have committed the offence for which they have been charge-sheeted.