1. ' Applicant/accused Ghazi son of Gulzar is facing trial alongwith other accused persons for the offences punishable under sections 302, 324, 34, 427 and 504, P.P.C. In the Court of learned Sessions Judge, Sanghar.
2. ' The incident took place on 18-7-2000 at 18-00 hours and the F.I.R. Was lodged promptly within one hour i,e, 19-00 hours on the same day. The F.I.R. Reads as follows:-- "Complaint is that my maternal-Cousin Ghulam Mustafa Shah son of Ghulam Rasool Shah has got 18 acres agricultural land in Deh Darar. Today evening I, Ghulam Mustafa Shah, my brother Younas Ali Shah, Khan Mari went together from the village to visit the land of Ghulam Mustafa. Reaching the land we saw that Kehar Rind son of Umer Rind who had hatchet in his hand was grazing four buffaloes in the cotton crop and the cotton crop of Ghulam Mustafa Shah was sufficiently damages. We restrained Kehar Rind who went away after altercation. We drove the buffaloes and reached Jalal Mari link road at 18-00 hours. Meanwhile accused Talib son of Umar Rind armed with double-barrel gun, Ghazi Jatoi having hatchet in his hand, Kehar Rind having hatchet in his hand and Mitho alias Mithal Jatoi having hatchet in his hand came out from the Otaq of Talib Rind and started abusing. We restrained them from abusing, on which Talib Rind by coming close, fired two gun shots directly on the chest of my brother Younis Ali with intention to murder him and he fell down. Kehar Rind caused sharp side hatchet injury on the head of Ghulam Mustafa Shah. Ghazi Jatoi and Mitho alias Mithal Jatoi caused hatchet injuries to Anwar Arain on his head and other parts of his body. We raised cries and Hakals, on which accused 'went away towards the house of Kehar Rind. Then we saw that Younis Ali Shah had died and Anwar Arain became unconscious. I then narrated the facts to my father Nobat Ali Shah who also came to the Sarzamin and saw/verified the facts. Then other villagers also came and by leaving them with dead body I brought injured Ghulam Mustafa Shah and Anwar Arain at Taluka Hospital, Tando Adam and leaving them there I have come to police station alongwith my father Nobat Ali Shah and report that abovesaid accused persons on preventing buffaloes, have murdered my brother Younis Ali Shah by firing from the gun with common intention and have injured Ghulam Mustafa Shah and Anwar Arain by causing hatchet injuries."
3. ' Learned counsel for the applicant has submitted that according to F.I.R. Applicant Ghazi and Mitho are alleged to have caused hatchet injuries to Anwar Arain on his head and other parts of the body.
4. ' According to medical certificate Anwar Arain had one injury on his head caused with hard and blunt substance and it is to be determined at trial as to which assailant caused the said injury. He has further submitted that so for the applicability of section 34, P.P.C. Is concerned, it is not attracted because the incident took place in the heat of passions and there was no common intention to commit murder. I have specifically asked the learned counsel to explain if there was any justification for accused persons to come armed with gun/and hatchets in the circumstances of the case. The learned counsel is not able to offer any explanation. According to F.I.R. The complainant party had merely driven out the buffaloes which were being grazed in their field and thus there was no justification for the accused persons to be enraged to the extent of rushing to the place of incident duly armed with gun and hatchets. By a tentative assessment of the above circumstances it is apparent that they came sharing the common intention to teach a lesson to the complainant party for driving away their buffaloes from the land of the complainant party. The contention that the question of common intention requires further enquiry does not impress me, because, if this contention is accepted in every case, then the specific provisions of law in this behalf shall become redundant and nugatory and everybody will take law in his own hand and trample the rights of others to live. The Courts cannot remain oblivious of the objective conditions prevailing in the society. The Courts are supposed to take the judicial notice of the fact that the life, liberty and property of the common man is in great jeopardy. The conditions prevailing in the society at present can be compared to the state of affairs, described by the famous political thinker's habeas, in his classical book "Leviathan" to the State of nature prevailing before committing into instance of "social contract" farming the State, where the life was solitary, poor, nasty, brutish and short. No doubt everybody is deemed to B be innocent till convicted by Court but this liberty is not to be extended for the purpose of bail, particularly in respect of the commission of heinous offences. In the present case one innocent soul has been done to death and other persons have been subjected to injuries just because the undue pride and arrogance of the accused persons was injured. Such state C of affairs cannot be ignored and the Court should take cognizance of such desperate and unwarranted actions, affecting the valuable right of meaningful life to the citizens.
5. ' For the foregoing reasons, I am of the view that at this stage it is not possible to say that the applicant was not sharing the common intention with co-accused who allegedly committed murder of Younis Ali. The bail application is, therefore, rejected.