1. ' IFTIKHAR MUHAMMAD CHAUDHARY, C.J.--Applicants Mehrullah son of Sardar Doda Khan, Abdul Rashid son of Shah Dost and Haji Khan son of Illahi Baldish, are involved in a case under section 324/34, P.P.C. Registered at Police Station City, Khuzdar, vide F.I.R. No,59 of 1999 on 20th June, 1999, at 6-45 p.m. On the complaint of Abdul Samad son of Ghulam Haider, caste Musyani.
2. ' The prosecution case is that, on the date of incident, complainant came out of his house at 6-30 p.m. He boarded on the vehicle of Sardar Naseer Ahmad, who himself was driving the same. At this moment, all of a sudden, from the front side of Buldia Rest House, the Gunman of Mir Mehrullah Zehri (applicant) started firing with fire-arm. As a result, complainant sustained injuries, as one bullet hit on his back side and the other caused injuries near his neck. On account of injuries, he fell down, whereas Sardar Naseer Ahmad, got saved as a miracle. He further stated that he has no enmity with Mehrullah and has also no knowledge, as to why, his gunman opened firing upon him.
3. Report was lodged against the gunman of Mir Mehrullah Zehri and others.
4. ' It may be noted that on the even date, another F.I.R. Being No,60 of 1999, was also got registered at same police station at 8-40 p.m. On the complaint of Haji Khan son of Ellahi Bakhsh, under section 324/34, P.P.C., wherein he alleged that on said day at about 5-35 p.m. He was present in Buldia Rest House, alongwith Mehrullah and Abdul Rashid. After sometime, he came out of the residential room and while he was standing in the Courtyard of Rest House, he saw that all of a sudden, the gunman of Sardar Naseer Khan, opened fire upon him, due to which, one bullet hit on his right foot and the other on his buttock, due to which, he got injured and fell down. He further stated that number of bullets also hit on the walls of Rest House. According to him, the gunman of Sardar Naseer Ahmad, had fired upon him, without any justification.
5. ' On the registration of cases, noted hereinabove, applicants were arrested, recoveries of incriminating articles, including the empties, were effected from the place of incident and statements of witnesses, particularly of Amir Bakhsh son of Lal Muhammad were also recorded.
6. ' Applicants requested the learned Sessions Judge/Special Judge, S.T.A. Khuzdar, for their release on bail, but their request was not acceded to, vide order, dated 3rd July, 1999. As such, instant application has been moved.
7. ' It may be rioted that applicant Haji Khan son of Ellah Bakhsh, who got injured was shifted from Khuzdar to Quetta, for purpose of treatment.
8. ' At the time of hearing, it was contended on his behalf that he is entitled for bail, on medical ground as well, because he is not being treated properly, at Quetta. Similar arguments were adduced in Bail Application No,302 of 1999, which has arisen out of F.I.R. No,60 of 1999. Thus, cases of both the Injured were sent to Standing Medical Board, Civil Hospital, Quetta, for opinion. Accordingly in the instant case vide letter, dated 17th July, 1999, in respect of Haji Khan, the Standing Medical Board, opined as under:-- "Patient is attended by Dr. Dh. Muhammad Iqbal, Associate Professor. Case of Gun Shot injury right hip, right F/T and S/T fracurre Femur. Need ORIF under Image Intensified and as the Image Intensified is out of order. So, he cannot be operated. He may be referred to Jinnah Postgraduate Medical Centre Karachi for further proper management.
9. ' The Standing Medical Board is of the opinion that Image Intensified should be made in working order immediately so that such cases should be treated herein Civil Hospital, Quetta."
10. ' Mr. Riaz Ahmad, learned counsel, contended that investigation of the case has been completed.
11. Challan against all the applicants has been submitted before the Special Judge, S.T.A. Khuzdar, and they are no more required to prosecution for any purpose. Admittedly, as per the contents of F.I.R. No previous enmity existed between the parties and as there are cross-cases, therefore, it is yet to be determined during trial, that who amongst both the parties, was aggressor. As such, the applicants have made out a case for their release on bail. He also stated that as for as applicant Haji Khan is concerned, he is entitled for bail, because as per the opinion of Standing Medical Board, he is not getting proper treatment in Civil Hospital, Quetta.
12. ' Mr. Noor Muhammad Achakzai, learned Additional Advocate-General vehemently opposed the request of applicants for their release on bail. According to him, though there are cross-cases, but the presence of both the parties, at the place of occurrence is fully established. The applicants had fired with lethal firearms, on the Highway Road, leading to Karachi, on account of which serious law and order problem was created. The evidence collected by Investigation Agency, against the parties, is sufficient to prima facie establish their involvement in the indiscriminate firing, without any justification. According to him, in the incident, both the parties have used the Kalashnikovs/firearms freely and had turned the public place into a Battle Field. Thus, on account of their vicarious liabilities, all the applicants, have rightly been found prima facie involved in the commission of offence, by the Sessions Judge/Special Judge, S.T.A., Khuzdar. He, therefore, vehemently opposed the request of application for their release on bail.
13. ' We have gone through the evidence, available on record, carefully, to examine; whether pirma facie, offence under section 324/34, P.P.C. Is made out against them, to disentitle them from the benefit of bail or not? Record of the case has also been minutely perused.
14. ' There is no gain in saying that at the stage, when bail application has been moved immediately after the commission of offence, the Courts can dispose of the request for grant of bail, by taking into consideration the grounds/material, which is visible on record, to adjudge; whether accused pressing for bail, is entitled for such concession or not? In this behalf, for guidance reliance can be placed on the case of Dr. Behram Khan v. Nasir Ahmad Bacha and others PLD 1986 SC 118. Relevant para. Therefrom is reproduced hereinbelow:-- "The judgment of the High Court is too elaborate to suit the required needs of either of the provisions. The points involved in the case could have been disposed of in a shorter judgment as well by taking into consideration the main grounds which ordinarily float on the surface of the case and deep analysis of the contentions raised by the parties on each point was not necessary. But that by itself is also no ground for coming to the conclusion that the case could not be dealt with under subsection (2) of section 497. We are conscious that the language used in subsection (1) and subsection (2) of section 497, in so far as the existence or otherwise of the reasonable grounds for believing that the accused has committed the offence, is similar; but the same has been use in both the provisions indifferent context. While in subsection (1) of section 497, the phrase has been used as a bar to the grant of bail, it is used in subsection (2) as a ground for allowing the bail to the accused as of right. It is not necessary to further discuss this aspect of the matter as the law has already been sufficiently clarified in the decisions of this Court. We, however, agree with the learned counsel that while examining the facts and circumstances of the case for the purpose of bail the case could also have been examined, first under subsection (1) of section 497, Cr.P.C. As the offence was punishable with death or imprisonment for life and after having excluded the application of the barring provision contained therein, bail could be then granted under subsection
(2) of section 497, Cr.P.C. But this is only a procedural technicality, which does not furnish enough basis for setting aside the impugned Judgment."
15. ' As it has been observed hereinabove, that both the cases i,e, F.I.Rs, 59 and 60 of 1999, were registered, one after the other, within a short span of about more than two hours, but the incident has been introduced substantially, in an identical manner, with regard to firing by both the parties, on each other.
16. ' In the instant case statement of Amir Bakhsh is very important. According to him, on the day of incident, he was watching Television in the Bungalow of Sardar Naseer Ahmad, where he was informed by Naseer Ahmad that he alongwith his driver Abdul Samad came out of the house to go to the house of Deputy Commissioner. At about 6-30 p.m. When they came out from the house, they heard reports of firing, and he saw that Mir Mehrullah Zehri, had a Klashnikov in his hand and his gunman was firing around the Rest House. Therefore, he also opened firing. In the meanwhile, police and other Administration reached there. It may be noted that firing with Klashnikov cannot be denied, because ten empties, were recovered from near the place of incident. The statement of this witness fully corroborates with the statement of complainant Abdul Samad. Thus, from the evidence available on record, it is prima facie established that in presence of applicant Mehrullah, his gunman fired upon Sardar Naseer Ahmad when he was passing from near the Buldia Rest Hosue, in his vehicle, being driven by him.
17. ' Undoubtedly, at this stage, individual responsibility of applicants, cannot be established, but in view of the material available on record, there is no difficulty in drawing inference that when firing took place, applicants were present over there. Out of them, applicant No,1, had a Klashnikov in his hand, whereas remaining two applicants were also armed with lethal weapons, because they are his gunmen. It may be noted that presence of all the applicants, at the place of incident and receiving of injuries by Abdul Samad Complainant, leaves no doubt to prima facie hold, that incident took place in furtherance of their common intention. Therefore, they can be hold severally and jointly for causing hurt to him with firearm. It may also be observed that the Standing Medical Board also gave opinion in respect of Abdul Samad and Stated that he has been discharged from the hospital, as he has improved.
18. ' Mr. Riaz Ahmad, learned Counsel, argued that as there is doubt, that who amongst both the parties, attacked first, therefore, even at bail stage, benefit of doubt can be extended to applicants.
19. In support of his contention, he placed reliance on PLD 1995 SC 34, wherein it has been held that 'Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail, because there is a wide difference between the jail life and the free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would go to him even at bail stage'.
20. ' In our opinion, the Rule laid down in this Judgment, cannot be made applicable on the facts of instant case, because; prima facie prosecution has established through statement of Amir Bakhsh, that applicant Mehrullah had a Klashnikov in his hand, whereas his other gunmen were firing upon the opponents and in this manner, he has also assigned their role, which they played in the commission of offence. As far as the presence of applicants in Buldia Rest House, from where firing was made, the same has also not been denied. Therefore, in view of these facts, the Judgment cited by learned counsel has not advanced his case.
21. ' It has also been contended by Mr. Riaz Ahmad, Advocate, that there are cross cases, arising out of F.I.Rs, Nos.59 and 60 of 1999, therefore, it is not possible to visualize, that who was aggressor, as such, a case of further enquiry is made out, entitling the applicants to bail. In this behalf, reliance was placed on 1993 PCr.LJ 623 and 1996 PCr.LJ 1612.
22. ' We have carefully considered this aspect of the case as well, in the light of judgment cited by learned counsel. First of all, it may be seen that in the case of Muhammad Hussain v. The State 1993 PCr.LJ 623, bail was granted, because accused has also sustained injuries, which remained unexplained by prosecution, whereas in instant case, it is nobody's case that complainant Abdul Samad had not received injuries from the bullets fired by gunmen of applicant Mehrullah. Similarly in the case of Abdul Khalique v. Niaz Khan and 4 others 1996 PCr.LJ 1612 plea of accused for his release on bail was entertained, because record was showing two cross-versions; one by the complainant party and other by accused arty, and the Court considered that the counter-version appearing to have some truth in it, thus, bail was granted. Whereas, in the instant case, applicant Mehrullah and in the counter-case, arising out of F.I.R. No,60 of 1999, Sardar aseer Ahmad, have contended that there was firing between their Gunmen, from both the sides. Both of them have also admitted their presence, when this incident took place. Therefore, in our opinion, this Judgment as well, is of no help to learned counsel. Moreover, from the facts and circumstances, it is established that unless the Masters, applicant Mehrullah in Criminal Bail application No,311 of 1999 and applicant Sardar Naseer Ahmad in Criminal ail Application No,302 of 1999, had not ordered their supporters/gunmen, to pen fire, they would have not done so, because they have no personal enmity with each other. Thus, it is prima facie established that firing was opened by the gunmen at the instance of both the notables i,e, Mir Mehrullah and Sardar Naseer Ahmad. In this behalf, it would not be out of context to refer to the Judgment delivered in the case of Muhammad Akbar and 2 others v. The State PLD 1991 SC 923, wherein the Hon'ble Supreme Court has held that 'a joint action by number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C.' It was further observed in this very Judgment that "mere presence of an accused at the place of incident with a co-accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstance manifesting a common intention. Generally common intention inter alia proceeds by some or all of the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even on the spur of moment or during the commission of offence, Conversely common intention may undergo change during the commission of offence".
23. ' As we have noticed in the instant case that prosecution witness Amir Bakhsh in an un-ambiguous terms, has stated, that applicant Mehrullah had a Klashnikov in his hand, whereas his gunmen were firing. The arrest of all the three applicants was made immediately after the incident of firing from Buldia Rest House. Therefore, prosecution case appears to be true, on the point that firing had taken place from Buldia Rest House, where all the applicants were present and they were arrested subsequently.
24. ' Now turning towards the arguments of applicants' counsel that it is a case of further enquiry, therefore, the applicants have made out a case for their release on bail.
25. It may be seen that case of further enquiry can conveniently be established, almostly in every case, by put forward two adverse arguments, but mere possibility of further enquiry would not constitute a ground, for treating the matter, for grant of bail, within the ambit of section 497(2), Cr.P.C. As it has been held in the case of Asmatullah Khan v. Bazi Khan and another PLD 1988 SC 621.
26. ' Mr. Noor Muhammad Achakzai, learned Additional Advocate-General contended that bail as a matter of right, cannot be granted to applicants, because prima facie, their case falls within the prohibitory clause of section 497(1), Cr.P.C. In this behalf he relied on the case of Muhammad Sarwar and others v. The State 1998 SD 32.
27. ' There is no need to discuss this aspect of the case, because section 324, P.P.C. Entails punishment of Imprisonment for 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 punishment, provided for the hurt caused. Therefore, on this ground as well, concession of bail cannot be extended to applicants.
28. ' Mr. Riaz Ahmad, learned counsel, contended that applicant Haji Khan, is not getting proper treatment, therefore, he is required to be shifted to Karachi, for further management, in view of the opinion of Standing Medical Board. Thus in view of the Judgment in the case of Muhammad Bashir v. The State 1991 PCr.LJ 2422, he is entitled for bail, on this ground.
29. ' Learned Addl. A.-0., however, contended that prosecution is ready to shift applicant Haji Khan under Escort to Karachi for treatment, in case the Image Intensified is not brought in working order.
30. He also drew our attention towards the Medical Opinion, wherein recommendations have been made to get the same in order, for the purpose of ORIF.
31. ' In view of the statement of Addl. A.-G. For providing Escort for shifting the accused Haji Khan to Karachi, there is no need to consider his request of bail on this ground.
32. ' We are also confident that in the meanwhile, the Medical Superintendent shall take necessary steps for making in order, the Apparatus of the Image Intensified.
33. ' No other point was argued.
34. Thus, for the foregoing reasons, we are of the opinion that applicants are prima facie involved in the commission of offence, as such, they are not entitled for the concession of bail. Consequently the application is rejected.
35. ' However, the Special Judge, S.T.A., Khuzdar is directed to commence with the trial of case, enabling the applicants to repeat the request of bail, after recording of some evidence.