ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.693 of 2009.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

FOR HEARING.

31.03.2010

Mr. Ali Nawaz Ghanghro advocate for applicants.

Mr. Akbar Ali H. Dahar advocate for complainant.

Miss Rubina Dhamrah, State Counsel.

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Applicants Khadim Hussain and Ghulam Muhammad seek bail in Crime No.01/2009 registered at Police Station Dhamrah for offences punishable under section 302, 324, 148, 149, 114, 504, 295, 295-A, 337-H(2), PPC, and 6/7 of ATA of 1997. The applicants approached to the Court of Special Judge, Anti-Terrorism Court Larkana who turned down their bail application vide order dated 16.10.2009. Hence the instant application.

Brief facts of the prosecution case are that on 09.01.2009, complainant Zulifqar Ali Jagirani lodged the FIR, stating therein that they have their own agricultural land, the same is cultivated by different farmers. Since about two years Ghulam Sarwar Jagirani was asking to purchase the same but complainant party refused to sell, on which they were issuing threats of dire-consequences to complainant party. On the fateful day as usual complainant his cousin Noor Ahmed and brother Sardar Ali, cousin Ghulam Yaseen and Abid Hussain were gathered in the Masjid of village to offer Juma prayer. His cousin is Pesh Imam of the Masjid. They all were sitting in the Masjid and his cousin Noor Ahmed was reciting the Khutba of Jumma. At 1:30 noon they saw that accused Ghulam Serwar, 2.Liaquat, 3.Talib, 4.Sikiladho, 5.Fida Hussain, 6.Muhammad Qasim, 7.Nizam all armed with Klashnikovs, 8.Khadim Hussain, 9.Niaz Hussain, 10.Wali Muhammad, 11.Imdad Ali armed with G-3 Rifle, 12.Rajib armed with Zogar rifle, 13.Ghulam Muhammad armed with repeater, 14Muhammad Hashim armed with gun, 15.Badaruddin armed with rifle all by caste Jagirani and five unidentified persons whose faces were opened armed with guns entered into the Masjid. They all overpowered complainant party. Accused Ghulam Serwar by giving Hakal told Noor Ahmed and complainant party as they had for so many times asked them for selling the land but complainant party did not agree, therefore, they will be done to death. Accused Niaz Hussain instigated other accused to kill them. Meanwhile accused Ghulam Serwar, Liaquat and Talib made direct fires with Klashnikovs at Pesh Imam Noor Ahmed. The fires of three accused hit him who after raising cry fell down, thereafter accused Sikiladho, Fida Hussain and Muhammad Qasim made direct fires of Klashnikovs at Sardar Ali and the fires of all three accused hit him at head who after raising cry fell down. Thereafter all the accused made direct fires at complainant party with intention of murder, but complainant party made their good escape, raised cries and gave the name of Holy Quraan to accused, on which accused issued threats and told that if complainant party will not sell the land, then they will be treated in the same manner and thereafter all the accused made aerial firing, raised slogans and went towards their village. Complainant party saw Noor Ahmed, found firearm injury on right side of jaw, right side of head skull, skull ruptured, blood was oozing and died and then saw Sardar Ali, found firearm injuries at near left eye, the left side of skull ruptured, blood was oozing and was dead. Complainant leaving his cousin Ghulam Yasin and Abid Hussain over dead bodies and went to Police Station, where he lodged the FIR.

We have heard Mr. Ali Nawaz Ghanghro learned counsel for the applicant, Mr. Akbar Ali Dahar learned counsel for complainant and Miss Rubina Dhamrah learned State Counsel and perused the record.

Mr. Ghanghro contended that the applicants have made aerial firing as stated by the complainant in the FIR and no specific role is attributed to applicants for murder of the two deceased. He further contended that 161, Cr.P.C statement of P.Ws recorded on the next day and 164, Cr.P.C statement of witnesses were recorded after the delay of seventeen days of the incident. He further contended that this is tendency of part of this country that when the incident occurs, the complainant party involves much and more persons of one and same family. He further contended that in these circumstances the applicants are entitled for concession of bail. Lastly learned counsel for the applicants has relied upon the cases of Muhammad versus The State 1998 SCMR 454, Sallahuddin versus The State 1996 SCMR 1124 and contended that in the light of citations, the applicants are entitled for concession of bail.

On the other hand Mr. Akbar Ali Dahar learned counsel for the complainant contended that the names of the applicants are clearly mentioned in the FIR which is lodged promptly. The applicants are accompanied with other co-accused and entered in the Mosque where the P.Ws were available for performing Jumma prayer. He further contended that they have brutally murdered the two innocent persons in the mosque and created havoc and terror. He further contended that the applicant Ghulam Muhammad and Khadim Hussain were arrested on 20.1.2009 and G-3 rifle from Khadim Hussain and from Ghulam Muhammad repeater gun was recovered . He further contended that from the place of vardat empty shell of G-3 rifle were also recovered and 15 empties were also recovered during investigation. He has relied upon the cases of Imtiaz Ahmed and another versus The State PLD 1997 Supreme Court 545, Muhamamd Hanif versus The State PLJ 1978 Supreme Court 380 and in the circumstances he vehemently opposed the grant of bail.

Miss Rubina Dhamrah, learned State Counsel supports the contention advanced by Mr. Akbar Ali Dahar and vehemently opposed the grant of bail.

We have heard the learned counsel for the respective parties, perused the material placed on record and also gone through the citations relied upon by the learned counsel. With due respect we are unable to agree with the contention of learned counsel for the applicants as the citations relied upon by the learned counsel for the applicant are not applicable in the circumstances of the present case. This incident has taken place in mosque where the deceased and P.Ws were available to perform Jumma prayer. From the facts and circumstances of the case, the applicants have participated in brutal murder and created havoc and terror in the area. The applicants have defied the sanctity of mosque out reached the religious feelings of the Nimazis as they were gathered for Jumma prayer in the mosque. In these circumstances, we are of the view that the applicants are not entitled for grant of bail. Consequently we dismiss the bail application.

Judge