ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 789 of 2008.

Date	Order with signature of Judge

1.         For orders on MA No. 1926/09.

2.         For hearing.

12.01.2010.

Mr. Habibullah Ghauri, Advocate for applicant No. 3.

Mr. Abdul Rehman Bhutto, Advocate for applicant No. 2 and 4.

Mr. Ghulam Shabir Shar, Advocate for complainant.

Mr. Nisar Ahmed G. Abro, the State counsel.

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            F.I.R No. 220/2008, was registered at PS Ratodero, on 29.08.2008, for crime stated to have been committed at 9.00 a.m. of the same day.  After narrating previous litigation and enmity between the parties it was stated by the complainant that he alongwith his  nephew Deedar Ali and other relatives left Ratodero town in a car for going to Larkana. When the car reached Lashari bus stop, seven persons including four applicants in this bail application all having pistols in their hands pointed their pistols at the car and signaled it to stop; the car stopped. Accused Mohammad Ashraf while abusing fired straight at Deedar Ali, which hit him at right side of abdomen, accused Muqeem fired straight at Deedar Ali which hit him below the left nipple and accused Naveed  (applicant No.1 in this bail application) fired straight at Deedar Ali,  which hit him at thigh  of left leg and accused Mehrab Ghanghro also fired at Deedar Ali hitting him on his left leg.  Thereafter it is stated that, all the accused fired over him, raised slogans and ran away.  Deedar Ali expired while on way to hospital.

                        On 07.01.2010, learned counsel for the applicants withdrew bail application in respect of applicant No. 1.

                        Mr. Habibullah Ghauri, learned counsel for applicant No. 3 submitted that no firing or injury is attributed to the applicant Gulzar and no individual role is assigned to him. He submitted that as for as Gulzar is concerned, it is case of further enquiry and therefore, he is entitled to bail. He further submitted that since there was previous enmity, although his client is innocent, he has been falsely implicated. He further submitted that there is no recovery of crime weapon from any of the three applicants.

                        Mr. Abdul Rehman Bhutto, learned counsel for applicants No. 2 and 4, adopted arguments of Mr. Ghauri.

                        Mr. Ghulam Shabir Shar learned Advocate for complainant referred to F.I.R No. 86/08, registered at PS Ratodero, on 30.03.2008. This F.I.R was lodged by the deceased Deedar Ali and his complaint was that when he was going towards police station a group of 11-persons, which included Gulzar and Akhtiar waylaid him. He further stated that Ali Nawaz Ghanghro abused the complainant and pulled out pistol from fold of his shalwar and made straight fire at him, but he escaped injury. Learned advocate for complainant also referred to F.I.R No. 87/2008, in which it was alleged that 11-persons, which included Akhtiar and Gulzar caused firing outside the police station. Learned counsel also referred to F.I.R No. 113/2006, wherein allegations were leveled against six persons, which included present applicant Samandar. It was alleged that cash amount of Rs.7000/- was snatched by them from Manzoor Ali brother of Arbab Ali. Snatching of wrist watch and Sindhi cap on pointation of Kalashnikov was also alleged. It was also alleged that butt blows were caused to Manzoor Ali. Learned counsel also pointed out that a statement was made by accused Naveed that on the day of present incident he was in attendance in the Court of Civil Judge, Ratodero. Learned counsel referred to statement filed by Ali Mardan Chandio Clerk of the Court, who stated that he had not given any such statement in respect of accused Naveed. Learned counsel submitted that these previous F.I.Rs: show history and they indicate that murder of Deedar was a premeditated murder with definite motive. He further argued that if the accused are released on bail, there is very high probability of the accused trying to influence the prosecution witnesses and even committing crime against the prosecution witnesses, and therefore, justice and fairness demands that accused may not be released on bail.

                        State counsel Mr. Nisar Ahmed Abro, stated that one of the co-accused Mr. Ali Nawaz Ghanghro, an advocate of this Court has been granted bail in Crl. Bail Appln. No. 495/08, vide order dated 01.09.2008, in respect of the same crime. He stated that at-least this is a case of ineffective firing by the present remaining three applicants and supported grant of bail.

                        Exercising his right of reply Mr. Ghauri submitted that in all the other cases referred to by Mr. Shar, the accused persons have been granted bail and no allegations whatsoever for alleged misuse of facility of bail or for cancellation of bail has been filed n any of those cases.

                        Both the learned counsel referred to extensive law, to which I shall deal in appropriate place.

                        Learned counsel for the applicants firstly relied upon Mumtaz Hussain and five others v. The State (1996 SCMR 1125); Attaullah v. The State and another (1999 SCMR 1320), Faraz Akram v. The State (1999 SCMR 13690),  and Mohammad Saddique and another v. The State (1996 SCMR 1654).

                        In Mumtaz Hussain’s case the petitioner alongwith 24-others was accused of an offence under section 302, among others, P.P.C,  13-persons were enlarged on bail by trial Court, while another 06-persons were granted bail by the High Court. Bail of the petitioner before the Supreme Court was refused on the ground that they, prima facie shared common intention as they were armed with deadly weapons at the place of incident in a place of worship. The Supreme Court observed that though they were armed with deadly weapons, but since they caused only simple blunt injury using wrong side of their weapons, the matter needed further enquiry and consequently bail was allowed.

                        In Mohammad Saddique’s case it was alleged that three accused fired on the deceased, whereas Mohammad Saddique and certain others were alleged to have kept on firing and raising “lalkara”. The Supreme Court held that the “Lalkara” is proverbial and though the petitioners were stated to be armed with pistol, and rifles, but they did not cause any injury to the complainant party. The Supreme Court admitted them to bail.

                        In Attaullah’s case, Additional Sessions Judge, granted bail, High Court cancelled bail; and the Supreme Court observed that since no injuries had allegedly been caused by the petitioner, before it. Order passed by the Additional Sessions Judge, was restored by the Supreme Court.

                        In Faraz Akram’s case it was observed that no overt act was alleged or ascribed to the accused except of ineffective firing. Fatal shot was attributed to the co-accused and question of vicarious liability of the accused could be determined only at the trial. The case of the accused was thus held to be a case of further enquiry and bail was granted.

                        On the other hand learned advocate for complainant referred to on Iftikhar v. The State (2000 MLD 1925). The against the applicant in that case was that he while in police custody using handcuffs with which his hands were chained, hit on head of his adversary and caused him injuries. The High Court observed that such a desperado could not be allowed concession of bail as there was every likelihood that he would repeat the offence with magnitude and enormity exceeding all proportions, if set free.

                        Next case referred to by the learned counsel for complainant was Ali Nawaz v. The State (SBLR 2009- 604). High Court observed that deeper appreciation of the evidence cannot be undertaken at the time of consideration of bail application. Bail was refused.

                        In Meero alias Mir Mohammad v. The State (2000 MLD 262), the accused was named in the F.I.R with specific role of having caused firearm injury to the deceased, who had received seven firearm injuries on his persons, which fact was borne out from the postmortem report. Bail was declined to the accused in the circumstances.

                        Mohammad Ashraf v. The State (2006 SCMR 966), was the next case relied upon by the learned counsel for the complainant. It was observed by the Supreme Court that the petitioner had been specifically nominated in the F.I.R and specific role of raising “lalkara” to facilitate Mohammad Anwar to commit the murder of deceased had been attributed to him. Background of the case was that prior to this occurrence of crime case was got registered against the petitioner at the instance of deceased Mohammad Hayat wherein he and his daughter had to appear as witness. The Supreme Court observed that in view of this previous enmity it could not be assumed at this stage that the “Lalkara” raised by the accused was proverbial. Therefore, it was held that prima facie the petitioner was not entitled for bail.

                        Mohammad Waseem Nawaz alias Chhina Loola v. The State (2002 SCMR 1279), is the next case cited by the learned counsel for complainant. Precise allegations against petitioner in that case were that he being member of an unlawful assembly armed with lethal weapons had fired from motorcar as a consequence whereof one passerby, namely, Abdul Majeed was injured. Record indicated that the petitioner was a desperate criminal and there were serious charges of murders between the parties. Supreme Court held that in such like circumstances the petitioner is not entitled to relief of bail.

                        In Dilmir Hussain v. The State,  (2004 YLR 1810) the allegation against accused was that he alongwith others got into the shop of deceased, hugged him and brought him out of the shop. Co-accused thereafter, launched a deliberate forceful attack on deceased by means of Chhuris and deceased died before reaching the hospital.  The Lahore High Court held that accused had facilitated commission of crime in question. Bail was refused.

                        Last case referred to by the learned counsel was from the jurisdiction of AJK Supreme Court Ghulam Hussain v. The Mst. Parveen Bibi and others (2004 YLR 2269), it was alleged in the F.I.R that Ghulam Hussain was armed with double barrel gun, from which he fired at complainant, which hit him at his upper part of right thigh. Bail was refused.

                        In the present case the allegations against the three remaining applicants are firstly; being members of an unlawful assembly and secondly while escaping resorting to aerial firing. It is not alleged in the F.I.R that they caused any injury to the deceased or even fired at the deceased. The case of Ghulam Hussain (supra), Ahmed Waseem Nawaz (supra), Meero alias Mir Mohammad (supra), and Ali Nawaz (supra), are therefore, clearly distinguishable, because in all these cases there were specific allegations that the accused has caused injury to the deceased by use of firearm.  Iftikhar’s case is also distinguishable because he was firstly in police custody and while being handcuffed in chains he attacked his adversary. It was in this context that the High Court held him a desperado.

                        In Mohammad Asrshad’s case the role attributed to Mohammad Arshad was that of “lalkara”, and the Supreme Court held that since there was previous enmity the accused cannot be said to be proverbial.         On the other hand in Mohammad Saddique’s case the “lalkara” was held to be proverbial. What is called “lalkara” in Punjab is called “hakal” in Sindh. In the F.I.R there is no allegation of “hakal” or “Lalkara”.

                        Attaullah’s case is of much greater relevance. No injury was attributed to have been caused by the applicant. The Additional Sessions Judge had granted bail; High Court had refused bail and the Supreme Court restored the order of the Additional Sessions Judge, because no injury had been allegedly caused by the applicants to the deceased.          To the same effect, Mumtaz Hussain’s case can also be referred, where though the persons were armed with weapons, but in the words of Supreme Court, they used wrong side of their weapons and gave only butt blows.

                        Co-accused Ali Nawaz Ghanghro has been granted bail. Although on the face of F.I.R role alleged against Mr. Ali Nawaz Ghanghro is the same, as the role alleged against three applicants, but in the bail granting order that role has not been discussed in sufficient detail. What prevailed in with his lordship on that Mr. Ghanghro being a respectable member of the bar had been falsely implicated.

                        The contention is of Mr. Ghauri that in other F.I.Rs: referred to by Mr. Shar, the present applicants have already been granted bail. If in those cases they have been granted bail,  those cases cannot be a ground for refusing facility of bail of bail in this case.

                        For the foregoing reasons this bail application to the extent of applicants No. 2, 3 and 4, is allowed. Let above applicants be admitted to bail on their furnishing solvent surety in the sum of Rs.300,000/- (three lacs), and P.R bond in the like amount to the satisfaction of trial Court.

Judge