1. ' MUHAMMAD ASHRAF LEGHARI, J.--We intend to dispose of these two criminal Miscellaneous Applications Nos.88 of 1999 and 89 of 1999 through this common order, as they arise out of the same offence under sections 302 and 324, read with section 34, P.P.C., relating to Crime No,10 of 1999 of P.S. Sanjar Bhatti.
2. ' The applicant/complainant (hereinafter referred to as applicant), has moved the abovestated two applications seeking cancellation of bail of accused Muhammad Saleh and Ghulam Muhammad. Accused Muhammad Saleh was granted post-arrest bail by the learned Special Judge (Suppression of Terrorist Activities), Larkana, on 4-9-1999, whereas accused Ghulam Muhammad was granted pre-arrest bail by the same Court vide order, dated 20-8-1999.
3. ' The facts, in brief, as narrated by the complainant (now applicant) are that, on the night of incident i,e,, 10-6-1999 at about 1-00 a.m. His son Bakhsh Ali was ploughing the land by tractor, whereas complainant, his brother Abdul Khalique, Dur Khan and Abdul Razzak were sitting at some distance. They noticed on tractor light that four persons were passing by their side, on which, Dur Khan asked: as to who were they. Upon this enquiry, those persons came near them. It is alleged in the F.I.R., that they were armed with Kalashnikov, rifle and guns. On coming close to them, they exchanged harsh words with the complainant party and grappled with Dur Khan. The complainant and witnesses concealed themselves in the darkness due to fear and in the meantime, Bakhsh Ali also left the tractor and intervened. It is further alleged that accused fired, which hit Bakhsh Ali and Dur Khan. They also fired towards the complainant party causing terror, whereafter, accused left the scene of offence. It is the further case of prosecution that, when the complainant and witnesses went near Dur Khan and Bakhsh Ali, they found Bakhsh Ali dead, whereas Dur Khan had sustained injuries and was raising cries.
4. ' The F.I.R., further shows that the complainant and witnesses had seen the culprits very well on the tractor light and they would be able to recognize them.
5. ' It is contended by Mr. Muhammad Afzal Soomro learned counsel for the applicant that Ghulam Muhammad accused had never appeared before the police and was all along absconding in the case. The police after completing the investigation, submitted challan, wherein, he was shown as absconder. He has contended that the accused was fugitive from law and did not deserve any concession for seeking his pre-arrest bail. The learned trial Court has not considered the factum of mala fide on the part of police, at the time, when he was allowed pre-arrest bail, when in fact, the accused was absconding and fugitive from the Court itself.
6. ' So far as the case of accused Muhammad Saleh is concerned, it is contended that he was arrested on 20-7-1999 and his identification test was held through complainant, Dur Khan, Abdul Razzak and Abdul Khalique, on the next day of his arrest. The accused produced unlicensed gun used in the crime and the cartridges in presence of Mashirs. The separate case under section 13-E of Arms Ordinance, 1965, was registered against him. The statements under section 164. Cr.P.C., of witnesses Dur Khan, Abdul Razzak and Abdul Khalique were recorded before Judicial Magistrate, Shandadkot, in presence of accused Muhammad Saleh on 29-7-1999. The witnesses had categorically implicated accused Ghulam Muhammad and Muhammad Saleh and two others. It is contended by Mr. Afzal Soomro that the learned Judge (Suppression of Terrorist Activities) has not taken into consideration all the aforesaid points inasmuch as he has not even observed tentatively in his bail order that the accused was not guilty of the offence, with which, he was charged and that the case of the accused required further inquiry. He has placed reliance on the unreported case of Pir Bux v. The State in Criminal Bail Application No,10 of 1997, where the bail was cancelled by a Division Bench of this Court consisting Nazim Hussain Siddiqui, J. (now Chief Justice) and Zafar Haidi Shah, J. (as he then was), on the following considerations: "Above contentions have no force. The applicant and said co-accused were arrested on 5-7-1996 and were identified by the complainant and P.Ws. Wali Muhammad and Badaruddin as the culprits of this case in the identification test, which was held before a Magistrate on 9-7-1996 i,e,, only after four days of their arrest. The prosecution witnesses have claimed to have identified the culprits in the light of electric bulb as well as in the headlights of the motorcycle. It is an admitted fact that the parties were perfect strangers for each other. The complainant and the P.Ws. Under the circumstances, had no motive to falsely implicate the applicant and co-accused. From possession of applicant, beside a pistol, a golden chain of deceased and his Identity Card were recovered, while from co-accused a pistol was recovered. The principle of consistency is not attracted to this case as the bail was not granted to co-accused on merits. The case of the applicant and said co- accused is identical. There are reasonable grounds to believe that both the applicant and the co- accused are guilty of the offences they stand charged.' Accordingly, bail granted to co-accused Hamid Ali is cancelled and he is remanded to custody. Bail to the applicant is refused and his bail application is dismissed."
7. Mr. Altaf Hussain Surahio learned counsel for the State, has not supported the two bail orders passed by the learned trial Court and has stated that there was ample evidence. On the record against the fugitive from law and, therefore, he was not entitled to any concession of pre-arrest bail and by that order, the prosecution and the police were deprived of the right of investigation.
8. For accused Muhammad Saleh, he has contended that he was rightly picked up in the identification test. His name was specifically taken by the P.Ws. In their 164, Cr.P.C., statements. The gun allegedly used in the commission of offence was also recovered from him. The empties were recovered from the Vardat. There was no delay in lodging the F . I. R .
9. ' Mr. Muhammad Ayaz Soomro, learned counsel for the accused has contended that identification parade was held after 39 days of the incident and that the identification on tractor light was a weak type of evidence, which cannot be believed. He has further asserted that the names of the accused do not figure in the F.I.R., and that in identification parade, they were not picked up by witnesses by showing the part played by them in the commission of offence. The learned counsel has placed reliance on:
(1) Muhammad Ramzan v. Zafar Ullah and another (1986 SCM R 1380),
(2) Shafi Muhammad and others v. The State (1990 PCr.LJ 1157),
(3) Muhammad Waryam v. Mahmood alias Mood and another (1998 PCr.LJ 1304),
(4) Riaz v. The State (1998 PCr.LJ 1687),
(5) Nabi Bux alias Nabu v. The State (1989 PCr.LJ 1123), and
(6) Muhammad Suleman Dahri v. The State (1993 PCr.LJ 726).
10. The record reveals that accused Muhammad Saleh was arrested on 20-7-1999, on the basis of information given by the villagers, disclosing that these persons were involved in the commission of the offence. On the next day of his arrest, he was put to identification test, wherein, he was perfectly identified by all the four witnesses including injured. Thereafter, 164, Cr.P.C., statements of witnesses namely Dur Khan, Abdul Razzak and Abdul Khalique were recorded in presence of accused Muhammad Saleh. The empties were taken by the police from the Vardat and the same alongwith gun allegedly recovered from accused was sent to the expert, which report is still awaited. In this incident, due to firing by the culprits, Bakhsh Ali died at the spot, whereas P.W. Dur Khan sustained serious fire-arm injuries. The 164, Cr.P.C., statements of P.Ws. Disclose that some persons from accused community had contacted them and held talks for compromise, wherein accused confessed their guilt and said that accused Muhammad Saleh, Ghulam Muhammad, Mashooque and Zulfiqar were involved in the case and that they were prepared to compensate the complainant party. These statements were recorded in presence of accused Muhammad Saleh, which can be used as substantive piece of evidence under section 265-J, Cr.P.C.
11. ' The case of Ghulam Muhammad, who was granted pre-arrest bail, was not entitled to that concession as the conditions for grant of pre-arrest bail are different from that of post-arrest bail.
12. There is no ulterior motive, humiliation, harassment or mala fide on the part of the police and the accused is not involved politically. The reliance can be made to a case of Murad Khan v. Fazal- eSubhan and another' (PLD 1983 Supreme Court 82), wherein their Lordships have held. .."As already 'observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment is ' a necessary condition for pre-arrest bail. It would not be out of place to notice another case Rao Qadeer Khan v. The State PLD 1981 SC 93, wherein indiscriminate grant of anticipatory bail was commented upon as follows: 'We are also in agreement with the learned Courts below that the conduct of the 'petitioner by making repeated applications for anticipatory bail, trying to gain advantage thereunder and then absenting for periods of time amounted to abuse of the process of law and Court'..'In 'this case, with respect, it is pointed out that the learned Judge in the High Court failed to notice the principles discussed. Above. Learned counsel for the respondent remained unable to satisfy us with regard to the condition of mala tide of the intended arrest. It was, therefore, not' a fit case for grant of anticipatory bail, though after arrears the petitioner would have been at liberty to urge the point on the basis of which the impugned order was passed".
13. The bail order further reveals that the main ground for grant of bail, which found favour to the learned trial Judge was that the identification parade was held after one month and 19 days of the occurrence. The observation on this point is again erroneous as the identification cannot be thrown away at bail stage on this ground. This would amount to final decision on the case. Moreover, the trial Court has not taken into consideration the identification parade from the angle of the arrest of the accused, which was held on the very next day of his arrest. The delay in holding identification test after arrest, say for 6/7 days, are some time considered to be good ground for grant of bail.
14. The learned Single Judge has not touched the other places of evidence available on the record connecting the involvement of the accused in the commission of the offence. He has not even taken pains to first decide that there were no reasonable grounds for believing that the accused has committed a non-bailable offence, if the bail is to be granted to him on the plea of further inquiry. Reliance can be made to a case of Mst. Reshman Jan v. Abdur Rehman (1991 SCM R 1849).
15. In the aforesaid case, their Lordships of Supreme Court have held as under:--- "Regarding the aforesaid legal questions the learned Advocate-General, N.-W.F.P., has stated that in future he would himself appear in the High Court in bail matters arising out of murder cases and that he would, in cases like the present one, plead the need for a finding to the effect that there are 'no reasonable grounds for believing that the accused has committed a non-bailable offence', if the bail is to be granted on the plea of 'further inquiry'. He has also undertaken to place before the Honourable Judges of the High Court the law laid down by this Court on this question."
16. ' The learned Judge has further gone into error in relying upon a case of Photo and-2 others v. The State (1986 PCr.LI 1543), in which, it was observed that the question whose Lathi blow was fatal to the deceased, therefore, bail was granted as common intention was yet to be decided. The said referred case has no relevance to the facts and circumstances of instant case as all the four accused were armed with fire-arm weapons, they have fired at the complainant party, which resulted in the death of one and caused injuries to other. The reference can be made to a case of Shahzaman and 2 others v. The State and another (PLD 1994 Supreme Court 65), wherein, their Lordships have held as under:--- "8. We are of the view that in case, when armed assailants attacked unarmed victim omission to pinpoint in F.I.R., as to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far as conviction on the basis of charge under section 302, P.P.C., is concerned, except on question of sentence, if trial Court believes evidence produced by the prosecution. Section 34, P.P.C., envisages that if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone..In this case in F.I.R., there is allegation that all the three appellants were armed with Lathis and Sarya and all of them inflicted injuries on the deceased. Everything depends on the intrinsic value of the evidence which is produced by the prosecution and it is for the trial Court to evaluate that evidence and come to the conclusion according to law." (Underlining is ours).
17. We are of the opinion that the reasoning advanced by the learned Judge (Suppression of Terrorist Activities) in allowing pre-arrest bail to accused Ghulam Muhammad and post-arrest bail to accused Muhammad Saleh is faulty and legally wrong. The ocular evidence against the accused is available on police file. Subsequent identification test is appearing against accused Muhammad Saleh. The complainant and the witnesses had no enmity with the accused to implicate them. The offence is a heinous one and the punishment is death.
18. ' Granting bails to accused lightly in cases of heinous nature, that too, in scheduled offences of the Suppression of Terrorist Activities Act, definitely add to the agency of the victim of highhandedness.
19. Growing menace, ever increasing violence in the society has already reached to alarming heights and grant of bail enables the criminals to come out of lock-up very conveniently at the initial stages, would in our opinion, amount to award the premium to criminals for their criminal activities.
20. We would very reluctantly observe, that we have failed to understand as to what were outstanding reasons for the trial Court, which prompted him to grant bails hurriedly in such a serious matter of scheduled offence committed with the automatic weapons.
21. ' The rule laid down in the case of Pir Bux (supra) is fully attracted in the instant case, in which, Division Bench of this Court cancelled the bail somewhat in similar circumstances.
22. ' The case-law submitted by the learned counsel for accused has no relevance to the facts and circumstances of the instant case.
23. For the foregoing reasons, it is held that there appear reasonable grounds to believe that the accused are involved in the alleged offence, with which, they are charged and they were not entitled to the grant of bail at this stage. The bail orders passed by the trial Court are recalled and the accused, who were admitted to bail, are directed to be taken into custody.
24. ' The Criminal Miscellaneous Applications Nos.88 and 89 of 1999 are hereby allowed and the to the accused as stated above are hereby cancelled.
25. ' All comments made hereinabove are tentative and will not affect the defence at the trial.
26. Bail cancelled.