1. ' These two applications arising out of same F.I.R. No,114 of 2001 under sections 302, 324, 147, 148, 149, 427 and 120-B, P.P.C. Of Police Station Pir Jo Goth are being disposed of by common order.
2. ' In Criminal Bail Application No,467 of 2001 applicant Mumtaz son of Audhal has prayed for grant of bail before arrest, whereas in Criminal Miscellaneous Application No,93 of 2001 filed by applicant Qurban Ali against respondent namely Mureed son of Bhuddo, Sulleman son of Soomar and Raja son of Banghul, the applicant has prayed for the cancellation of their bail to the abovenamed respondents, granted by learned IIIrd Additional Sessions Judge, Khairpur.
3. ' Since the facts leading to the abovesaid applications as narrated in the F.I.R. No,114 of 2001 registered at Police Station Pir Jo Goth are reproduced hereinbelow:-- "Complaint is that Jan Muhammad son of Hamid Bhutto aged about 37 years was my brother-in- law, who live together in same village, Nazir Ahmad son of Lal Bux Buhtto had Court-married with Mst. Salma daughter of Muhammad Bachal Bhutto from his village. On which the Bachal and others were annoyed on Jan Muhammad side, because Jan Muhammad had provided help and used to say that they will not spare Jan Muhammad. On today early in the morning I was standing in land for watering, the Jan Muhammad had to go on his duty to Khairpur in his Car J- 1821/Karachi, namely (1) Saindad son of Allandad, (2) Abdul Hafeez son of Qurban, (3) Ali Dino son of Sahibdino, (4) Nazir Ahmed son of Lal Bux all Bhutta by Caste and resident of Village Hamid Bhutto were ready to go with Jan Muhammad. I was standing in land and saw the car of Jan Muhammad came moving from house and when reached at some distance in eastern side at the link road of Bhittiyoon to Pir Jo Goth link road at about 8 hours the accused each (1) Mumtaz son of Aado with hatchet, (2) Aijaz son of Aadho with T.T. Pistol (3) Atta Muhammad son of Aadho with single barrel gun, (4) Murid son of Bhudo with Lathi, (5) Mashooq son of Jadal with hatchet, (6)
4. Sulleman son of Soomar with Lathi (7) Saroo son of Mureed with hatchet (8) Raja son of Bungul with Lathi and (9) Arbab alias Kandero son of Ali Bux with double barrel gun came from northern side of protective Bund in front of car and the persons armed with weapons started firing straight at car. Jan Muhammad stopping the car alighted, the others also alighted, then Abdul Hafeez and accused Arbab started beating with each other on which a fire from the gun of Arab hit on chest of Abdul Hafeez who fell down, the accused Mumtaz and Mashooq also put hatchet injuries on the head of Jan Muhammad who fell down then accused Aijaz Ahmed fired at Jan Muhammad on which I raised cries of murder, murder on which our women namely each (1) Mst. Soni daughter of Haji Hamid Bhutto, (2) Mst. Kariman alias Zuhran wife of Qurban Bhutto, (3) Mst. Rabail daughter of Lal Bux Bhutto and (4) Mst. Noor Jehan wife of Jan Muhammad came hurriedly to get us relieved, to whom accused also put hatchet and Lathi blows, our all men and women fell down then accused went towards their house raising slogans. I went and saw that there were injuries on the head of Jan Muhammad his brain was out and was bleeding there was fire on backside,. Left leg was broken and had died, there were also injuries on the arm and head of Saindad, a fire on right hand of Abdul Hafeez and injuries on other parts of body, there were wounds on stomach and backside of Allah Dino, Mst. Soni had wounds on arm, hand and leg there were also wounds of left arm and parts of body of Nazir Ahmed, there were wounds on head of Mst. Karima, wounds were also on the arms and others parts of body of Mst. Rabail, and on arm and hand of Mst. Noor Jahan and was bleeding and Arbab had also died on spot. The gun was lying adjacent to him, and there was huge loss to car then leaving injured to guard to dead bodies now presenting and producing gun of Arbab making complaint that above accused persons in league with each other riotously on the dispute of marriage at the plan of Hakim Ali son of Abdul Hakeem Bhutto and Meenhal son of Soomar Bhutto inviting Jan Muhammad from Khairpur through telephone has murdered him, and have injured above witnesses with intention to commit murder. I am complainant and seek investigation."
5. ' After due investigation of the case, the charge-sheet was filed in the Court of learned Sessions Judge, Khairpur and thereafter the matter was transferred in the Court of IIIrd Additional Sessions Judge, Khairpur for adjudication. Applicant Mumtaz was shown absconding accused in the charge-sheet whereas the respondents Nos.1 to 3 were arrested during the pendency of their case.
6. They moved an application for grant of bail in the trial Court.
7. ' The learned counsel for applicant, Mumtaz has prayed that the applicant/accused has been involved falsely in this case as there was enmity over matrimonial affairs which has been admitted by the complainant in the F.I.R. It is further urged by the learned counsel that complainant party made attack upon the accused party and they murdered Arbab and due to the influence of the complainant party Bungul father of the co-accused Raja filed direct complaint against the complainant party which was brought on record for an offence under sections 302, 147, 148 read with section 149, P.P.C. Against ten persons of the complainant party including the present informant/complainant. It is further argued by the learned counsel that the complainant party was aggressor and this is a case of two versions which requires further enquiry. The learned counsel further contended that the applicant has been shown falsely as absconding accused in the, charge-sheet with mala fide intention and the applicant is respectable person and law abiding citizen. In order to arrest him, the police is harassing the applicant with mala fide intention.
8. ' The learned counsel for the applicant has relied upon 1989 PCr.LJ 1910, 1991 SCM R 322, 1985 SCM R 1949 and PLD 1983 SC 82.
9. ' The Advocate for the complainant has opposed the bail and cited the case-law reported as PLD 1982 SC 192(d) and 1992 SCM R 501(b) and (c).
10. According to F.I.R. Specific part of infliction of fatal injury upon the deceased is attributed to him.
11. Whereas the applicant/accused has been declared proclaimed offender by the trial Court and the applicant/accused is absconding since last seven months and he has not been touched by the local police which reflects that the local police had extended unreasonable concession to be at large. This is a broad day incident and there is no delay in lodging of F.I.R., specific part is attributed in causing injuries to the deceased. The principles for grant of bail before arrest are different then after arrest. As per F.I.R. Injury is attributed to the applicant/ accused. In this case there are eight injured persons out of them four are female injured witnesses. Therefore, the applicant/accused is not entitled for grant of bail before arrest as there is no mala fides on the part of prosecution to involve him falsely.
12. ' Now I take up the case of respondents who have been granted bail after arrest on 1-3-2001 by the learned IIIrd Additional Sessions Judge, Khairpur.
13. ' The learned counsel for the applicant/complainant has urged that deceased has sustained 8 injuries whereas P.W. Hafeez has sustained 8 injuries, P.W. Suleman has sustained 3 injuries, Nazir Ahmed has sustained 2 injuries, Mst. Noor Jahan has sustained 4 injuries, Mst. Sonia has sustained 4 injuries, Mst. Kariman has sustained one injury and Mst. Rabul has sustained four injuries.
14. ' It is further urged by the learned counsel that the respondent/ accused were duly armed with Lathis and they inflicted Lathi injuries to the deceased as well as to all the prosecution witnesses and from the perusal of post-mortem report and the other certificates of the said injured witnesses there are numerous injuries caused by fire-arm injury sharp cutting hard and blunt substance and they are vicariously liable for causing such injuries to the deceased as well as to the prosecution witnesses and they have been wrongly extended the concession of bail by the trial Court without any justification. The learned counsel submits that the bail concession granted to the respondents may be cancelled as they are not entitled for the concession of bail. Reliance is placed on the case reported in PLD 1967 SC 340; PLD 1968 SC 349; 1978 SCMR 236; 1979 SCM R 109 and 1980 SCMR 1681.
15. ' Messrs Mumtaz Ali Siddiqui for State and Sajjad Hussain Kolachi, learned counsel for the respondents Nos.1 to 3 have supported the bail grant order and submitted that after grant of bail the applicant/ accused have neither misused the concession of bail extended to them. It is further urged by them that only general allegations of infliction of Lathi injuries are attributed to the respondents as well as to the injured witnesses and no specific injury on deceased as well as to prosecution witnesses have been attributed. Learned counsel has placed reliance on the cases reported as 1999 PCr.LJ 890 and 1990 SCM R 1360.
16. ' I have gone through the case-law cited by the respective counsel for the parties and also gone through the bail grant order and other material placed on the record by the learned counsel for the parties. From the perusal of the F.I.R. 161, Cr.P.C. Statements and post-mortem report of the deceased as well as the medical evidence of 8 injured witnesses as they have received in all 32 injuries caused by fire-arm, sharp cutting and hard and blunt substance whereas in the F.I.R. The abovenamed respondents are shown to be armed with Lathis and in consequence thereof it is alleged that they have caused injuries to deceased as well as injured P.Ws. The learned trial Court has granted bail to the respondents only on the ground that they are inimical to each other and such enmity is mentioned in the F.I.R. But whereas the trial Court has not considered it reasonable that the enmity mentioned in the F.I.R. Was a motive for the commission of offence and this fact can only be resolved after recording the evidence. The incident has taken place in broad day time and the names of the respondents alongwith overt act are narrated in the F.I.R. The F.I.R. Was lodged without any delay and thereafter sufficient, reasonable evidence has been brought on record against the respondent about the participation in the commission of the offence. There are reasonable grounds to believe that the respondents/accused have committed the offence punishable with death, imprisonment for life or imprisonment for 10 years. The Honourable Supreme Court in such circumstances has observed as under:-- "The case of Muhammad Akbar and others v. The State referred to above, was discussed and distinguished by this Court in Nazar Muhammad v. The State and another relied upon by the learned counsel for the complainant. It was observed in this case that- `We would like to clarify that in the case cited above Muhammad Akbar and others v. State, it was never intended to lay down as a rule of law that the Courts at bail stage should not even prima facie examine the question of constructive liability in the case where the accused is not attributed any injury to the deceased and is alleged to have caused injuries to the P.Ws. As defined in section 141, P.P.C. As assembly of the five or more persons is designated as an unlawful assembly if the common object of the persons composing it, inter alia is to commit any mischief or criminal trespass or other offence. There are other provisions such as sections 34, 109 and 120-B of the Pakistan Penal Code which envisage the rule of constructive liability. The Courts, on the basis of the material placed before them, such as F.I.R., statements recorded under section 161; Cr.P.C. Are finally justified, even at the bail stage, to go into the question whether a case of constructive liability is made out: ' Providing on these principles, the Court reaching the conclusion that the principle of vicarious liability was attracted to the case of the petitioner before it, and accordingly, leave to appeal was not granted.
17. ' We are in respectful agreement with the observations reproduced above and consider that it is entirely erroneous to think that in the case of Muhammad Akbar and others this Court laid down any rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at , the time of considering the question of bail. The question is essentially one which has to be determined on the basis of the facts of each case, available on the record at the time the question of bail comes up for consideration. If on the allegation appearing on the record the conditions set out in the provisions of law spelling out constructive liability are made out, then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life."
18. ' There is another view of the Honourable apex Court expressed in case of Nasir Muhammad Wassan and others v. The State reported in 1992 SCM R 501 which reads as under:-- "7. In view of these facts can on the ground of sudden fight as argued by the learned counsel for the petitioners, bail be granted. Similar question came up for consideration in Iqbal Hussain v.
19. Abdul Sattar and another PLD 1990 SC 758 and it was observed- 'Even if it is considered as a fight it is still a long way for the accused to establish all the conditions laid down in exception 4 to section 300, P.P.C. To get the benefit of Part I of section 304, P.P.C. And even if that is ultimately found to be applicable by rendering findings of absence of premeditation, cruelty, undue advantage etc. The sentence can still, in this case, be life imprisonment. These elements, therefore, were against the grant of bail rather than in favour thereof'.
20. ' This observation equally applies to the facts and circumstances of the present case. The learned counsel also contended that it was a case of further enquiry as there has been a fight between two groups.
8. Be that as it may, the fact remains that specific role has been assigned to the petitioners for causing death of two persons. The meaning of the term 'further enquiry' as used in section 497(2), P.P.C. Was explained in Iqbal Hussain's case (supra) as follows- 'It may straightaway be observed that this Court has in a number of cases interpreted subsection
(2) of section 497, Cr.P.C. Which with respect, has not been correctly understood by the learned Judge in the High Court nor has it been properly applied in this case. While he thought that it was a case of further inquiry which element, as has been observed number of times in many cases would be present m almost every case of this type. The main consideration on which the accused becomes entitled to bail under subsection is a finding though prima facie by the police or by the Court in respect of the merits of the case. The learned Judge in this case avoided rendering such prima facie opinion on merits as is mentioned in subsection (2) of section 497, Cr.P.C. And relied only on the condition of further inquiry. This approach is not warranted by law. Hence, the case not being covered by subsection (2) of section 497, Cr.P.C., the respondent was not entitled to bail thereunder as of right'.
21. ' Similar view was expressed in Mst. Bashiran Bibi v. Nisar Ali Khan and others PLD 1990 SC 83. In the face of the facts stated in both the F.I.Rs, and also,as is obvious from the order of the learned Sessions Judge that the deceased's body was found on the land where fight had taken place and the recovery of hatchets, prima facie support the averments made by the complainant Karim Dino.
22. Under the circumstances and on the material available prima facie opinion on merits in favour of the petitioners cannot be given at this stage and, thus, the question of further enquiry does not arise. In these circumstances merely because there are cross-F.I.Rs, or cross-cases against each other cannot be a ground for grant of bail. Besides this both the Courts below have exercised their discretion and refused to grant bail. The Supreme Court is reluctant to interfere with such discretion unless it is exercised contrary to the principles laid down by this Court, is in disregard of the principles governing the administration of criminal justice and/or is perverse. Reference can also be made to Hafiz Khuda Bux v. The State PLD 1988 SC 413, Arbab Ali v. Khamosi and others 1985 SCM R 195, Shahadat Ali v. Mubarak Shah and another PLD 1986 SC 347 and Mst. Bashiran Bibi v.
23. Nisar Ahmed Khan PLD 1990 SC 83. We, therefore, dismiss the petition."
24. ' In view of the dicta laid down in the above-cited authority by the learned counsel for the applicant the respondents 1 and 3 were not entitled for the concession of bail as granted by the trial Court.
25. The trial Court has wrongly extended such concession of bail to the respondents/accused and the bail grant order is liable to be set aside and their bail is cancelled. On 20-8-2001 their bail was cancelled and the respondents were committed to custody as they were not entitled for grant of bail but the trial Court had unjustifiably extended concession of bail to them which has resulted in miscarriage of justice.
26. ' Aforesaid are the reasons of the short order, dated 20-8-2001.