1. ' FAIZ MUHAMMAD QURESHI, J.---Present applicant is facing trial under sections 302. 109, 148, 149, 427, P.P.C. And I3(d). Arms Ordinance vide Crime No,91 of 2000 registered with Police Station Guddu before the learned 2nd Additional Sessions Judge/Judge S.T.A. Court for taluka Kashmore at Jacobabad_ He has been sent up to face trial alongwith co-accused namely and respectively Muhammad Punhal, Ishaque, Mirza, Ali Gohar, Ghazi, Peer Jan, Sikandar, Zahoor Ellahi and two.
2. Unidentified persons who are still absconders, He moved bail application before the trial Court but without success. Hence this application.
3. ' Brief facts of the case are that Gulab Khan son of Haji Bagan Khan on 11-12-2000 lodged report which was taken down as Crime No, 91 of 2000 under sections 302, 109, 148, 149, 427, P.P.C. And 13(d) of the Arms Ordinance. According to complainant his uncle Manzoor Hussain was Junior Engineer at WAPDA, Guddu Thermal and one Abdul Hameed son of Allah Rakhio Mazari was also employed in the same Thermal. About 1-1/2 years ago aforenamed Abdul Hameed was murdered and his brother Ishaque gave the name of Manzoor Hussain in the F.I.R. And during the investigation said Manzoor Hussain and others were proved innocent and they were released and on such release Ishaque Mazari was nursing grudge against the complainant party and he claimed to take revenge of murder of Abdul Hameed. The complainant has further stated in F.I.R. That they tried to settle the dispute through the Nekmards of the area and on 11-12-2000 complainant, his father Haji Bagan Khan, relative Gul Bahar and Bashir Ahmed all by Caste Soomra left together in a car from their village and went to Muhammad Punhal Mazari and Ishaque Mazari where other persons were also present. Haji Bagan Khan then talked to Muhammad Punhal and asked him for settlement to which Muhammad Punhal and Ishaque told the complainant party that they had consulted with Zahoor Ellahi Khan and they will not make any settlement with them. The complainant party then proceeded from Guddu Colony to meet with Abdul Karim Chachar at his bungalow but he was not available there and then they proceeded towards Kandhkot. At that time, Bashir Ahmed was driving the car while Bagan Khan Soomro was sitting on the front seat while complainant and Gul Bahar were sitting on the rear seat of car and at about 11-45 a.m. When they reached at Rehan Khoso Hotel near Derah Mor, at that time one Land Cruiser and one Pickup overtook the car of the complainant party and both the vehicles suddenly were stopped in front of their car, to which Bashir Ahmed also stopped the car and they saw Muhammad Punhal, Ishaque, Mirzan, Ali Gohar all carrying Kalashnikovs, Gahzi, Peer Jan, and Sikandar carrying T.T Pistols alongwith two unknown accused who were carrying guns. Accused Muhammad Punhal Mazari shouted and then told Bagan Khan that they will take the revenge of murder of Abdul Hameed. Thereafter, Peer Jan and Sikandar alongwith two unknown accused alighted from the vehicle. Complainant, Bashir Ahmed and Gui Bahar were also alighted from the car on the point of weapons. Accused Muhammad Punhal and Ishaque who were standing in front of the car, opened fires from their Kalashnikovs which hit Bagan Khan while accused Ali Gohar also fired with Kalashnikov at Bagan Khan which too hit him and the complainant party could not intervene due to tear for their lives and thereafter all the accused made their escape good towards Sui side in the Land Cruiser bearing No,L-9363 BC and Pickup No,2667 S.I. The complainant party then noticed that deceased has injuries on all over his body and then immediately removed the deceased in the same car to Civil Hospital Kashmore for treatment but he succumbed to injuries. The complainant has further stated in the F.I.R. That all the aforenamed accused in connivance with co-accused Zahoor Ellahi masterminded planed to kill his father and they also caused damage to the car.
4. ' Thereafter, the police took up the investigation and arrested the aforenamed applicant on 26-2- 2001 and thereafter submitted challan showing seven accused alongwith two unidentified accused as absconders, ' Learned counsel for the applicant Mr. Abdul Fatah Malik, has contended that there is no recovery from the possession of the preseni applicant. The witnesses in the case are chance witnesses and according to him there are direct allegations of firing on We part of present applicant from Kalshnikovs on deceased Haji Bagan Khan. He has further contended that two Investigating Agencies have declared the aforenamed accused as innocent and further contended that the case of the present applicant calls for further inquiry and is entitled to the concession of bail. He has placed reliance on the case law reported as (1) 1974 PCr.LJ Note 10 at p.7, (2) PU 1990 Cr.0 (Kar.)
5. 436, (3) PLD 1995 Supreme Court 34, (4) PLJ 1999 Cr.0 (Pesh.) 802 (DB), (5) PLD 1999 Lahore 74 and
(6) 1999 MLD 2026.
6. ' On the other hand, Mr. Abdul Razzak Soomro, Advocate for the complainant opposed vehemently to the grant of bail and submitted that the present applicant has not only taken active part in the offence but he has been directly attributed firing from his Kalashnikov on deceased. He has further contended that there is no chance witness in the case and all the witnesses had gone there for amicable settlement and further contended that the present applicant-is not entitled for the concession of bail.
7. ' Mr. Gul Hassan Solangi, Advocate for A.A.-G. For the State also opposed the grant of bail by raising contentions that specific role is attributed to the present applicant who has fired from his Kalashnikov on deceased and the witnesses are not the chance witnesses and the opinion of the two Investigating Agencies is not binding upon this Court and vehemently opposed the grant of bail.
8. ' We have considered the arguments advanced by learned counsel for the parties at the Bar and we have also gone through the material available on record. From the bare reading of the contents of F.I.R. The present applicant is attributed specific role who has fired from his Kalashnikov on deceased who sustained the injuries and subsequently died. We have also examined very carefully that the witnesses available at the place of occurrence are not the chance witnesses and if we take into consideration, for the time being, that the witnesses are the chance witnesses, then it requires deeper appreciation and the superior Courts have held that while deciding the bail application the deeper appreciation is to be avoided. Court is not to go into details of evidence nor the evidence could be sifted at bail stage. All that is to be seen in a bail application is that whether there were sufficient reasons to connect the accused with the commission of the alleged offence.
9. In the instant case the aforenamed applicant is named in the F.I.R. And with specific role of firing at the deceased who had suffered firearm injuries attributed to him. The other witnesses have also implicated the present applicant, there is sufficient material, therefore, available on record to connect the accused with the commission of the offence. The evidence of chance witnesses as contended by learned counsel for the applicant requires deeper appreciation which cannot be taken into consideration at bail stage. Reliance can be placed on a case Saeed v. The State reported in PLD 1992 Karachi 137. As far as the contentions of learned counsel for the applicant, that two Investigating Agencies have declared the present applicant innocent, such opinion is not binding on this Court while decidin bail application and merits to be considered while taking decision by the Court. A Court while considering the merits of the bail application is required to take a decision on the basis of material available at the time on record whether there are reasonable grounds to believe that the accused is involved in the crime and should avoid taking the crucial decision merely on the basis of investigation reports and entry of the name of the accused in Column No,2 of the challan, which may be relevant but not the sole criteria for grant of bail. Reference can be made to a case Muhammad Din v. The State reported in 1998 SCMR 1 wherein the Honourable Supreme Court has refused bail- to the accused against whom there were conflicting. Investigation reports by police, name of the accused and his role was specifically described in the F.I.R. And there were eyewitnesses directly involving the accused in the crime.
10. Accused was specifically assigned the role of firing at the deceased which firing according to the medical report proved fatal which was also affirmed by the eye-witnesses. Notwithstanding the three investigations showing the accused to be innocent, the 4th investigation by senior Police Officer of the rank of A.S.P. Having found the accused to be directly involved, application for grant of bail was rightly refused by the High Court, Supreme Court declined interference in the circumstances. In the instant case although there may he report of two Investigating Agencies and the same has not been placed before us. Nevertheless, the opinion of Investigating Agencies is not binding on the Court. We have also very carefully examined the contents of the F.I.R. And the statements of the witnesses who were available at the place of occurrence and we find the name of the present applicant in the F.I.R. With specific role of firing at the deceased, which firing, according to medical report, proved fatal which was also affirmed by the other eye-witnesses and in the circumstances there is sufficient material available against the present applicant and his involvement has been established in the commission of the offence. The Ia4, cited by learned counsel for the applicant is distinguishable from the facts of the present case and the same law has no bearing on the present case. We do not find merits in the bail application and accordingly the same is dismissed. Above are the reasons for our short order, dated 24-5-2001.