1. ' MUHAMMAD ASHRAF LEGHARI, J.---The applicant/complainant has sought the cancellation of by IInd Additional Sessions Judge, S.T.A., Khairpur to respondents No,1 Muhammad Ismail, (2)
2. Muhammad Budhal, (3) Muhammad Pinjal, (4) Ali Bukhsh and (5) Habibullah, in an offence punishable under sections 302, 147, 149 and 109, P.P.C. Read with section r3-D, Arms Ordinance, by order, dated 3-5-2000, 12-5-2000 and 30-6-2000. The case arose out of F.I.R. No,122 of 1999, of Police Station Sobhodero.
3. ' The brief facts giving rise to present application are that on 6-10-1999 at about 12-30 in the night one Din Muhammad lodged F.I.R. At Police Station Sobhodero, wherein he stated that on the day of incident at evening time, the complainant, his brother Shamsuddin, Roshan and Rafique proceeded to supervise the water rotation. At about 8-30 p.m. They reached near Gabro minrir, when accused Ismail armed with rifle, Habibullah armed with K.K. And accused Ali Bux, Panjal, Budhal and four unidentified persons armed with guns, emerged from sugarcane cultivation. The complainant party identified them on the light of torch. The faces of four unknown persons were open. It is claimed in the F.I.R. That on seeing again the unknown persons could be identified by the complainant party. The culprits dragged away Shamsuddin brother of complainant. The complainant and witnesses raised cries and followed them. The culprits fired at Shamsuddin near the land of Muhammad Wassan. Accused Habibullah opened burst of K.K. Which hit on his head.
4. The other accused fired from their respective weapons which hit deceased and the latter fell down on the ground. The villagers were attracted to cries and culprits on seeing them coming nearer ran away from the scene of offence after raising slongans. The complainant party saw that deceased Shamsuddin had sustained injuries on head, chest and back. He died on the spot.
5. ' The complainant party after leaving the prosecution witnesses over the dead body proceeded to police station and lodged the F . I . R .
6. ' The police after recording F.I.R: took up investigation and on completion thereof, submitted challan in the Court of Ilnd Additional Sessions and Special Judge, S.T.A. Court, Khairpur. The trial Court granted bail to the respondents on various dates mentioned hereinabove.
7. ' It is contended by Mr. Sher Muhammad K. Shaikh, learned counsel appearing on behalf of the applicant/complainant that incident had taken place at 8-30 p.m. And F.I.R. Was promptly lodged at 12-30 in the night. The incident is fully supported by three eye-witnesses, i,e, complainant, P.Ws.
8. Roshan Din and Rafique. On 12-10-1999 the accused Ismail, Ghulam Shabbir, Ali Bux, Panjal and Budhal led the police party and produced the guns, K.K. And rifles used by them in the commission of offence. Accused Habibullah produced K.K., accused Ismail produced rifle whereas remaining accused produced guns in presence of Mashirs Ghulam Jumman and Abdul Rasheed. It is pleaded that medical evidence is consistent with ocular evidence. The motive as disclosed by the complainant in the F.I.R. Is that Shamsuddin caused murder of Ali Hassan and in order to take revenge accused murdered him. The names of accused have been nominated in the F.I.R. And specific roles have been assigned to them. The trial Court has gone into deeper niceties of the matter which is not warranted by law. The reliance is placed upon the cases of Shahzaman and 2 others v. The State and another PLD 1994 SC 65, Mst. Resham Jan v. Abdur Rehman 1991 SCM R 1849, Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCM R 1765, Muhammad Din v. The State 1988 SCM R 1 and Sher Bahadur v. Haji Ghaffar Ali Khan and another 1999 PCr.LJ 403.
9. ' Mr. S. Mushtaque Hussain Shah learned counsel appearing on behalf of respondent Habibullah has argued that F.I.R. Is delayed by four hours. The prosecution witnesses are interested. No independent witness is cited and the incident did not occur in the house of complainant. The K.K.
10. Allegedly recovered from accused has not been sent to Ballistic Expert. With regard to motive it has been argued that it is not specifically stated as to how Ali Hassan was related to the accused. The number of injuries does not commensurate with the number of accused. The dimension of injury No,2 shows that the same was not caused by K.K. It was a night time incident and the identification of accused on torch light was doubtful. The reliance is placed upon the cases of Syed Amanullah Shah v. The State and another PLD 1996 SC 241 and Mir Azhar Jabbar v. The State and another PLD 1995 Kar.
11. 507.
12. ' On the last date of hearing i,e, 29-5-2001 Mr. Sahib Khan Kenasirio learned counsel appearing on behalf of .The respondents/accused Nos.1 to 4 sought the date of his choice i,e, 1-6-2001. On 1-6- 2001 when this matter again came up for hearing, the clients of Mr. Kenasirio requested for adjournment on the ground that learned counsel is busy before S.B. At Karachi.
13. ' The present application for cancellation of bail was filed on 8-8-2000 and record shows that ten
(10) adjournments were sought by the respondents/accused party on one and another pretext. The apex Court in various matters has time and again observed that the application for cancellation of bail should not be, protracted, and disposed of as early as possible. Keeping in view this dicta of apex Court we decided to proceed with the matter.
14. ' Mr. Ghulam Dastagir Shahani learned Additional Advocate-General has conceded to the prayer of applicant/complainant and stated that the trial Court has deeply assessed the evidence at bail stage in capricious manner which is not warranted by law. He has relied upon the case of Muhammad Umar v. The State 1994 M LD 895 and Babar Mashi v. The State 2000 M LD 1487.
15. ' We have perused the material placed on record as well as police record with the assistance of learned A.A.-G. And the learned counsel for the parties.
16. ' The perusal of material placed on record shows that the F.I.R. Of the present incident was lodged within 4 hours. This point can be well adjudicated upon after some evidence is recorded. Four hours' delay in lodging F.I.R. Cannot be made base for grant of bail and the same cannot be construed as an inordinate delay at bail stage. The names of the culprits are disclosed in the F.I.R.
17. The role of firing at the deceased has been ascribed to them. The ocular version is supported by complainant, P.Ws. Roshan Din and Rafique. The accused led the police party and produced the weapons used by them in the commission of offence in presence of two private Mashirs. The strong motive for committing the crime has been disclosed in the F.I.R. The ocular version is supported by medical evidence. The finding of the trial Court for the grant of bail that there are general allegations against the accused and it is not deducible that whose fire proved fatal, could hardly be a ground for grant of bail in each and every case, prima facie the ingredients of section 149, P.P.C. Are attracted in the case in hand as such each member of the unlawful assembly could be saddled with common object for committing the crime. The proposition that which assailant fired and at what part of the body of deceased was hit, is inconsequential at bail stage. This tantamounts to deeper appreciation of evidence which is not warranted by law for the purpose of bail. The assailants duly armed with fire-arms formed unlawful assembly and with common object launched attacks upon the victim. Thus each one of them is prima facie responsible for committing the offence and it is also immaterial to determine at bail stage as to whose fire proved fatal. The reference in this context'can be made to the case of Saeeduzaman and 2 others v. The State and another PLD 1994 SC 65. At paragraph 8 of the reported case their Lordships have observed as under:- - "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 was 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 was produced by the prosecution and it is for the trial Court to evaluate that evidence and come to the conclusion according to law."
18. It is well-settled that for the grant of bail Court has to arrive at a conclusion that the accused is not guilty of the offence with which he is charged and case goes out of the ambit of prohibitory clause of section 497, Cr.P.C. And comes within the purview of section 497(2), Cr.P.C. While arriving at the conclusion that the case necessitates further inquiry, the Court is under obligation to hold that there are no grounds to believe that the accused had committed non-bailable offence. Such finding is lacking in the case. The reliance can be placed upon the case of Mst. Resham Jan v.
19. Abdur Rehman 1991 SCM R 1849, wherein their Lordships have observed as under:-- "Regarding the afore-noted 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 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."
20. ' The findings of the trial Court in impugned bail order, dated 3-5-2000 that the medical report shows that the injuries were caused to the deceased only by K.K. And none of the injuries were caused with rifle or gun is misconceived. This fact is not borne out from the record. The another aspect which weighed with trial Court for grant of bail was that the Klashnikov was not sent to Expert. This is no ground for the grant of bail. The evidence is yet to come on record and only thereafter such a finding can be recorded. In this context reliance is placed on the case of Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCM R 1765.
21. ' The case-law cited by the learned counsel appearing on behalf of the respondents/accused is distinguishable from the facts and circumstances of the present case.
22. For the foregoing reasons, we are of the considered view that the trial Court has passed the impugned orders in excess of authority and against the settled principles laid down by the apex Court which warrants interference.
23. ' Consequently, the to respondents/accused Nos.1 to 5 by the trial Court is hereby cancelled.
24. Bail cancelled.