' The facts leading to the present application for bail are that applicant Sohail Ahmed is facing trial before learned Additional Session Judge, Maler, Karachi, in a case under sections 302, 324, P.P.C.
Read with section 34, P.P.C., which has arisen out of F.I.R. No,74 of 1998 of Police Station Malir City, Karachi.
2. The brief facts of the prosecution case as set forth in the F.I.R., lodged by Muhammad Naeem on 20-5-1998, are reproduced hereinbelow, for the sake of convenience:-- "I am residing on the aforesaid address and dealing in the business of 'Pan' (Betel leaf). We are of Brohi community and are on inimical terms with Jadgal brothery since last 6/7 years. Today, I was sitting in front of the office of Kashif Coash, situated at Village Ghazi Brohi and nearer to me my relations Muhammad Akbar alias Muhammad Jan, Abdul Ghani, Adam and Allah Bux were also present. Adjoining to them Muhammad Jawed son of Muhammad Usman and Muhammad Sharif son of Muhammad Hasim were also present when suddenly Muhammad Yousuf Baloch, who was armed with a Kalashnikov and Abdul Ghafoor, who was armed with a T.T. Pistol appeared from the lane adjoining the office and in order to kill opened fire on us with the result that (1) Muhammad Akbar alias Muhammad Jan, (2) Abdul Ghani and (3) Adam received serious injuries and died on the spot whereas Allah Bux has received injuries and he has been shifted to Jinnah Hospital. Now, I have come for report. Accused Yousuf Baloch and Abdul Ghafoor fired upon us and have killed Muhammad Akbar alias Muhammad Jan, Abdul Ghani and Adam and injured Allah Bux. Action may be taken. Heard report. It is correctly recorded."
3. During the course of investigation, in his further statement the complainant and eye-witnesses of the occurrence stated that two more accused i,e, applicant, who was armed with a rifle and Farid, who was armed with Klashnikov were also with the accused Abdul Ghafoor and Muhammad Yousuf. They instigated and asked their companions to finish complainant party. Due to the firing made by accused one passer-by Syed Safdar Kazim son of Syed Qamar Abbas, a boy, aged about 10 years, also sustained bullet injury and he died.
4. The applicant applied for the bail before the trial Court but it was declined to him by the impugned order, dated 22-2-1998.
5. I have heard Mr. M. Iqbal Ahmed, learned counsel for the applicant and Mr. Sharafat Ali Khan, learned counsel on behalf of A.-G. For the State. The State counsel has opposed the grant of bail to the applicant.
6. The perusal of record shows that the complainant in his further statement and eye-witnesses Allah Bux, Muhammad Javed and Muhammad Ibrahim in their statements under section 161, Cr.P.C.
Have categorically stated that applicant and one Muhammad Farid being armed with lethal weapons instigated co-accused Abdul Ghafoor and Muhammad Yousuf to finish the complainant party. The words, which they uttered were (---) whereupon they opened fire with the result three persons from complainant party succumbed due to the injuries on the spot and the fourth one also received injuries of fire-arm but he survived and a poor way farer young boy aged about 10 years became victim of the blood feud between the parties and lost his life for no sin of his. It was broad daylight incident. The applicant is not resident of the place where this unfortunate incident occurred. He had come with the co-accused from a distant village. Looking towards the peculiar facts and circumstances of the case, prima facie, the common intention was to kill as many persons as possible of the complainant party. The reckless firing also robbed a young boy of his life who was in his teens and had not seen the spring of the life, which was yet to come. Merely, because applicant did not use fire-arm is no ground for the grant of bail in the case in hand. It is not a rule of universal application that in each and every case where accused did not use the fire- arm it was a case of no over act and or that such a case automatically becomes one of further enquiry.
7. The facts of each case are different and individual liability of each accused is to be determined in the light of the particular facts and circumstances of each case. The offences with which the applicant is charged carry capital punishment. A deep appraisal or evaluation of evidence for the purpose of bail cannot be made at this stage and only tentative assessment of material in possession of prosecution is warranted by law. The reasonableness of the grounds is to be tested on the basis of material available with the prosecution and brought to the notice of the Court by the defence or prosecution and then without going into deeper evaluation of the said material and merits of the case if it is found that there are reasonable grounds to believe that accused is guilty of the offence with which he is charged bail could be refused to him.
8. Merely, because enmity existed between the parties it is no ground for grant of bail in each and every case. Each case is to be looked into its own perspective. The enmity is a double-edged weapon and it can be termed a motive for the commission of crime depending of course upon facts and circumstances of each case.
9. The case law reported as Muhammad Sadiq v. The State 1996 SCM R 1654, Qutab v. State 1998 M LD 1169, Abdul Saleem v. The State 1998 SCM R 1578 and 1999 PCr.LJ 230, cited by the learned counsel for the applicant is distinguishable from the facts and circumstances of the present case and is of no help and avail to the applicant. The applicant may, if so advised, repeat his prayer for bail before the trial Court after material evidence is recorded.
10. The upshot of the above discussion is that there are reasonable 8 grounds to believe that prima facie applicant is guilty of the offence with which he is charged. He is, therefore, not entitled to bail.
His bail plea stands dismissed.
11. The observations made hereinabove are of tentative nature, the learned trial Judge shall not be influenced by them in any manner/way while deciding the case on its own merits after independently evaluating the evidence recorded at the stage of trial.