1. ' These are bail applications filed by the accused who has been charged under sections 302, 324, 148, 149, 337-A(i) and F(i), P.P.C., in Crime No,64 of 1999, Police Station Shandadkot.
2. ' The brief facts of the case as per F.I.R., lodged by complainant Shafqat Ali on 27-4-1999 at 1400 hours at Police Station, Shandadkot are that he is President of Tehrike-Jafferia, Shandadkot. On 27- 4-1999 at 1-00 p.m. The complainant Syed Ghulam Sarwar Shah, Zulfiqar Ali, Waked, Maqbool, Muhammad Hashim, Hyder Abbas, Imran and others were taking procession and were going towards Kooto Motoo Chowk. When they reached near Maderassah Tajweezul Qur'an they saw accused 1. Hafiz Manzoor armed with DBBL gun,
2. Nawaz armed with pistol 3. Abdul Nabi armed with DBBL gun 4 Ghulam Rasool armed with pistol 5. Zulfiqar armed with brick-bats 6. Abdul Qadir armed with Rifle 7. Zakir Hussain armed with gun 8. Gull Hassan armed with gun 9. Ghulam Mustafa armed with Pistol 10. Ghulam Abass armed with pistol 11. Abdul Sarni armed with rifle 12. Bashir Ahmed armed with Rifle 13. Mukhtiar Ahmed armed with Pistol 14. Hafiz Zaheer Ahmed armed with gun 15. Imdad Ali armed with Pistol 16.. Dad Muhammad armed with Pistol 17. Waheed Ali armed with Pistol 18. Abdul Hakeem armed with Rifle 19. Naeem Ahmed armed with gun 20. Ghulam Nabi armed with gun 21. Nazeer Ahmed armed with gun 22. Muhammad Shahban armed with gun 23.
3. Sher Muhammad armed with gun 24. Nisar Ahmed armed with gun Zameer alias Baboo armed with gun and Hubdar armed with gun standing there. Seeing them, accused Hafiz Manzoor challenged them saying that they will not be spared. Saying so accused Hafiz Manzoor fired from his gun at Wakeel Ahmed alias Zulfiqar Ali, Nawaz fired from Pistol at Imran Ali, Zulfiqar gave brick- bat blow to Maqbool Ahmed, Abdul Nabi fired from gun at Hashim Maganhar and they raising cries and fell down. The complainant party due to feat fell on the ground. In the meanwhile the people of the town came on fire shot reports and "seeing them approaching the accused went towards Maderassah Tajweezul Qur'an. The complainant party then went near Wakeel Ahmed alias Zulfiqar Ali and Imran Ali having fire-arm injuries on their persons and Maqbool Ahmed had brick-bat blows on his left arm, Hashim had pallet injuries and Hyder Abass had fire-arm injuries and were bleeding from the injuries and were lying seriously wounded. The complainant party removed the injured persons to the Hospital where Wakeel Ahmed alias Zulfiqar succumbed to the injuries. The complainant then went to the Police Station and lodged F.I.R.
4. ' The motive behind the offence is that about one week prior to this incident, Hafiz Manzoor Ahmed Solangi had prevented the complainant party from passing the procession on 10th Moharam on Mastoi Muhalla, Sijawal Road near Maderassah Tajweezul Qur'an, on this, the complainant party replied them that their procession is passing through that road every year, therefore, they will pass from there this year also which infuriated the complainant and he issued threats that they will see them.
5. ' Police during investigation, arrested accused Hafiz Manzoor Ahmed, Muhammad Nawaz, Abdul Nabi, Ghulam Rasool, Gul Hassan, Ghulam Mustafa, Ghulam Abass, Ghulam Nabi, Nazeer Ahmed, Sher Muhammad, Muhammad Shahban, Zakir Hussain, Mukhtiar Ahmed, Bashir Ahmed, Imdad Ali and Dad Muhammad showing the remaining accused as absconders.
6. ' Hence this bail application.
7. ' The learned counsel for the applicant has mainly argued that keeping in mind the peculiar circumstances of the case and the fact that counter-F.I.R., has been filed, Bail should be granted.
8. Furthermore he has urged that the accused has been falsely implicated in the case purely because he refused to close his shop in spite of a call given by the complainant. He has also urged that his case is one of in-effective firing. He has also insisted that his case should also fall within the principle of consistency since the co-accused has also been granted bail. In this respect he has pointed out that co-accused Zulfiqar is on bail before arrest and co-accused Mukhtiar Ahmed and Shuhaban are also on bail granted by the trial Court. In fact he has insisted that the case of the accused is on the same footings and at per with co-accused Shuhban.
9. ' In support of his contention the counsel has on the point of counter-versions contained in Crime No,64 of 1999 and 65 of 1999 insisted that by now it is well-settled law that in such type of cases it is indeed a case of further enquiry and bail is granted.
10. ' On the point of in-effective firing and consistency he has relied on 1996 SCM R 1125, 1982 SCM R 955, 1992 PCr.LJ 172, 1994 SCM R 1680 and 1982 SCM R 909.
11. ' The counsel for the State on the other hand has insisted that specific role as per the F.I.R., has been shown in respect of Hafiz Manzoor, Nawaz Solangi, Zulfiqar Shaikh, Abdul Nabi Magsi as regards the other 22 persons are concerned they have only been shown as to have fired. It would be the case of in-effective firing. The learned A.A.-G. Conceded to the grant of bail.
12. ' The Advocate for the complainant, however, has refuted each and every contention of the counsel for the accused and has firstly pointed out that the principle of consistency shall not be applicable in this case as the bail granted to the persons, have been granted on grounds of special concern rather than merits. According to him accused Shuhaban has been granted bail due to old age.
13. Zulfiqar Ali was granted only pre-arrest bail specially as the role attributed to him in the F.I.R., is that he caused brick-bat injury to Maqbool Ahmed on his arm. Mukhtiar was granted bail on account of illness. He has further very strongly urged that except for the grant of bail to such persons no other person has been granted bail and, therefore, the principle of consistency will not be applicable.
14. Mukhtiar has been granted bail as he is a semi invalid person and cannot walk properly and it seems that he had in ali bi as on the day of the incident he was in the neuro-spinal and medical Institute at Karachi. None of the persons so released on bail have been released after taking into consideration the points raised above by the Advocate of the present applicant.
15. ' He has further urged that the incident mentioned in the F.I.R., related to the 10th Moharram procession which according to the complainant was attacked by the President of Sipah-e-Sahaba and his party who had pre-warned the complainant that they should not take the procession from and near Madrassah Tajweezul Qur'an adjacent to Mastoi Muhalla, Sijawal Road, Shandadkot. They were attacked near the Madrassah Tajweezul Qur'an by several persons whose names have been given in the F.I.R. According to the counsel for the complainant the firing on the procession was done with an intent and purpose and there was no provocation from the other side. Due to this incident three persons lost the lives and several were injured. The counsel has pointed out that such acts are pre-meditated and all the persons had a common intention. He has, therefore, strongly urged that bail should not be granted. He has relied upon 1993 PCr.LJ 924, 1986 SCM R 1681, 1991 SCM R 61, NLR 1995 P-376 (sic), 1989 SCM R 238, 1989 PCr.LJ 618, and also PLD 1972 SC 81, PLD 1992 Peshawar 125, 1978 PCr.LJ 300, 1983 PCr.LJ 214 and 1993 PCr.LJ 924.
16. ' I have gone through all the case law, and the record of the case and the points urged by all the learned counsel. At the outset I do not think that the counsel for the accused have made out a good case for grant of bail. Since the plea of consistency is not applicable as none of other accused or co-accused have been granted bail on the ground of in-effective firing or counter- versions in the F.I.R.'s. While learned counsel has talked about a counter-F.I.R. No,65 of 1999 yet they had not produced the same before me for reasons best known to them. As far as this point is concerned, therefore, it is turned down. The second point urged before me is on the ground of in- effective firing. The learned counsel have also relied on certain. Decisions of the Hon'ble Supreme Court which relate to the principle of granting the bail in case of in-effective firing and the principle of vicarious liability specially sections 148 and 149, P.P.C. It is by now a regular phenomenan in our society where Muslims have taken upon themselves the Holy task of calling another Muslim Kafir and also without any hesitancy declaring it there moral and Holy obligation to take life of other persons. All such persons belonging to any sect, should be admonished and reprimanded. They should be discouraged from taking of human lives so easily, as it is a cardinal sin for Mussulmen's. It is crystal clear that such actions are eating away at the moral fibre of our society, we are forgetting the rights that Islam safeguards for all persons living in a Islamic society whether they are Muslims or non-Muslims. Whether they belong to different sects of Islam or not. Repeatedly it has been enshrined in our books and teachings callings upon the faithful to be tolerant and safeguard and uphold the feelings of each individual. Sensitivity to the thinking of an individual whether it is religious, political or social has to be observed if we profess that we live in a civilised society.
17. In the instant case the procession was taken out by men to commemorate the great sacrifice Hazrat Imam Hussain and his family gave to uphold the tenants of Islam. These persons had no knowledge that they would be fired upon. Innocent persons lost their lives many others were injured. The action seems pre-meditated on face of it with common intention to disrupt a procession and create panic. Prima facie I do not think that the petitioner have made out a case for grant of bail. Accordingly the applications are dismissed.