1. The applicants along with Kachkol Khan, Haji Sher Muhammad, Amanuilah, Shamsul Haq, Mouza Khan, Nawab, Astafuddin, Gul Wahab, Nazeer,, Fazal Dad and Khan Bahadur are involved in a case under sections 302, 307, 147, 326 149 and 148, P. P. C. For causing the murder of Muhammad and gun shot injuries to Muhammad Jan and knife injuries to Luqman, Bahrain, Muhammad Ali, Sharifdad, Sahib Saeed, Gulzada, Muhammad Jan and injuries with a blunt weapon to Bahrain, Muhammad Jan and Mir Akbar; one other person, namely Jafri, who is a clerk in the K. P. T. Was also injured by gunshot and a separate case has been registered in regard to that offence at Police Station, Jackson.
2. Mr. A. H. Qureshi has appeared on behalf of complainant Shah Nazar and Mr. Murtuza Hussain for the State to oppose this bail application. According to them the incident occurred on 19th March 1969 at about 11 a.m. When the labourers had assembled to meet the representatives of the stevedores in connection with the settlement of their demands. In this connection it may be mentioned that a day earlier the labourers had elected Khan Madin as their president in place of Haji Sher Muhammad one of the accused in the case. It is alleged that he got infuriated because of his supersession as president of their Union and he along with the other accused including the applicants armed with revolver, knives and lathis went to the place where the labourers had assembled and committed rioting with deadly weapons resulting in the death of one Muhammad and injuries to the persons mentioned above. It may also be mentioned here that earlier to this bail application. Another bail application (No. 122 of 1969) was filed by the accused including the applicants in the High Court which was disposed of, by ,an order dated 27th May 1969. Except for the applicants and Haji Sher Muhammad all other accused were granted bail by the learned Single Judge. The applicants and Haji Sher Muhammad then filed petitions (No. PSLA No. K-11 and 12 of 1969) for leave to appeal against the order of the learned Single Judge dated 27th May 1969 in the Supreme Court of Pakistan. Both these petitions were dismissed on 13th June 1969. However, an observation in the order was made to the following effect: - "It will be open to the petitioners, or anyone of them, to move the Inquiry Magistrate and even the Sessions Judge and the High Court, for bail, if so advised, after some evidence is recorded, on the ground that their detention in custody is no longer justified in the light of the circumstances that may be revealed by the prosecution evidence."
3. Subsequent to this order bail was granted to Haji Sher Muhammad by the Additional Sessions Judge, Mr. Rasulbux Laghari, on 24th December 1969 as he was suffering from cancer. The challan in the case was submitted on 6th May 1969 and two witnesses, namely Shah Nazar Khan and Muhammad Ali have been examined by the Inquiry Magistrate. The third witness Farid Khan, though examined, is still under cross-examination. His statement has not been filed and no argument either from the side of the applicants or the complainant or the State has been addressed on it.
4. Mr. Abdul Hafeez Pirzada, the learned counsel, for the applicants, on the basis of the above observation of their Lordship of the Supreme .Court has contended that in view of the evidence so far recorded bail should be allowed to the applicants. I haveexamined the depositions of these two witnesses which are on record. Shah Nazar Khan who had lodged the F. I: R. Has implicated Wali Muhammad, Nazar Muhammad and Ghulam Muhammad. Against Wali Muhammad he stated that he had fired revolver shots at him while he was running away and had entered the KPT building and as a result of the said firing; one clerk, namely Jafri m the KPT building was injured. He has also implicated Wali Muhammad and Ghulam Muhammad for the infliction of knife injuries on deceased Muhammad. As for Niaza Muhammad he had not assigned any part though he has mentioned his presence as one of the members of the unlawful assemble. In his examination-in- chief he did not support that part of his statement in the F. I. R. Which refers to the arrest of Nazar Muhammad from the spot. He has not implicated either Rahim dad or Shimroz. Muhammad Ali has implicated Ghulam Muhammad, Wali Muhammad, Shimroz and accused Fazal Dad (who is not an applicant before me) for having caused knife injuries to the deceased. As for Nazar Muhammad he assigned to him the part of firing two successive revolver shots at him. The first one however, missed him but the second struck him on his left shoulder. This witness has not implicated Rahimdad Mr. A. H. Pirzada argued that there was no distinction between the case of Wali Muhammad and two other accused namely Kachkol and Astafuddin who were granted bail, because Shah Nazar Khan had equally implicated them so far as the firing of the revolver shots was concerned. I do not agree with this contention for at the stage at which bail was granted to Kachkol and Astafuddin Shah Nazar Khan was not examined and their names were also not in the F. I. R. But as evidence has now come on record it will not be possible to appraise the part assigned to him at this stage. Moreover, there is also the allegations grains him that he had also struck knife blows on the deceased. The other witness Muhammad Ali has also implicated him for having caused knife blows to the deceased. There is, therefore, no force in this contention.
5. Mr. Abdul Hafeez Pirzada next argued that Shah Nazar Khan has merely stated about the presence of Nazar Muhammad but has not assigned any part to him. He has also resiled from that part of the statement in the F. U R. Where the arrest of the applicant is mentioned. He further referred to the allegations against him by Muhammad Ali who stated that he had fired shots at him though the medical evidence belied his evidence and according to the doctor who examined him, he had only incised injuries. In these circumstances he has pressed for grant of bail to Nazar Muhammad. I do not agree with his contention for his presence is prima facie made out as a member of an unlaw- ful assembly; he had injuries and was arrested from the spot though Shah Nazar has not supported this aspect in his evidence As a member of an unlawful assembly he would be vicariously liable and his participation cannot be minimised merely because no part hasbeen assigned to him.
6. Mr. Pirzada next argued that he was also a labourer and his presence cannot be taken to be one of a member of the unlawful assembly as it was the meeting of the labourers and it was for that reason that he was there. I can only agree with him if I were to the evidence at this stage and come to a finding that he ' not come along with the other applicants and the accused in taxi to commit rioting. The appraisal of evidence will be the Court and I will not do it at this stage. I do see therefore any substance in the above contentions urged the grant of bail' to him.
7. As against applicant Ghulam Muhammad, these two witnesses have implicated him for causing knife injuries to the deceased and the learned counsel for the applicants has not any cogent reason for the grant of bail to him. I would therefore reject the request for bail to him as well.
8. Shimroz.Khan has not been implicated by Shah Nazar Khan Muhammad Ali has assigned-to him the part of causing knife injuries to the deceased. His participation therefore in the crime also prima facie made out.
9. There now remains the fifth applicant, namely Rahimdad. His name was not mentioned in the F. I. R.
10. Nor, has he been implicated by any of these two witnesses. He was not put to any identification test; his bail application was rejected by the learned Single Judge on the ground that he had an injury on his person. The Supreme Court also refused leave against that order at let, it for reconsideration when some evidence was recorded.However, the two witnesses so far examined have not implicated Him, his name, is also not mentioned in the F. I. R. The only circumstance of any injury is not sufficient-for refusing bail to him no learned counsel for the State and the complainant frankly conceded that his case is distinguishable and that they cannot seriously oppose the grant of bail to him. However, when further evidence is recorded it will be open to the prosecution to move for the cancellation of his bail. I may observe here at whatever I have expressed in this order is merely tentative and could not be taken to be an expression on the merits of the case.
11. In view my discussion I would refuse bail to applicants Nazar Muahammad Ghulam Muhammad Wali Muhammad and Shimroz Khan and would allow bail to Rahimdad in the sum of Rs. 10,000 with one surety and personal bond in the like amount to the satisfiction of the Inquiry Magistrate. The bail application is accordingly disposed of.