2013 Y L R 643
[Balochistan]
Before Ghulam Mustafa Mengal, J
SAFI ULLAH and 13 others ---Petitioners
Versus
The STATE ---Respondent
Criminal Miscellaneous Bail Application No.569 of 2012, decided on 11th December, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Penal Code (XLV of 1860), Ss.302/324/147/148/149 ---Anti-Terrorism Act
(XXVII of 1997), S. 7 ---Qatl-e-amd, attempt to commit qatl -e-amd, rioting, rioting armed
with deadly weapons, unlawful assembly, acts of terrorism ---Bail, refusal of ---Accused
persons allegedly fired upon their rival group due to a dispute concerning possession of some
property ---Contention of accused persons was that allegations against them wer e general and
it was yet to be determined as to which party was aggressor and who had been aggressed
upon ---Validity ---While deciding a bail application of an accused alleged for committing an
offence under Ss.302 and 149, P.P.C, the paramount considerati on should be that he was
member of an unlawful assembly and the offence was committed in furtherance of common
object ---Where it appeared that it was in the knowledge of such an accused that the offence
shall be committed in furtherance of common object of unlawful assembly, then every
member of such assembly shall be responsible for the act committed by any one of them ---
Allegation against accused of causing firearm injuries was supported by statements of
injured prosecution witnesses recorded under S. 16 1, Cr.P.C ---Recovery of lethal weapons
from the accused persons and medical report of injured and deceased persons also supported
the allegation against accused persons ---Offence alleged fell within the prohibitory clause of
S.497, Cr.P.C ---Accused persons being members of an unlawful assembly were not entitled
for concession of bail ---Bail application of accused persons was dismissed in circumstances.
2004 PCr.LJ 127 and PLD 1995 -K 459 distinguished.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497---Penal Code (XLV of 1860), Ss.302/149 ---Qatl-e-amd committed by members of
an unlawful assembly ---Bail---Scope ---While deciding a bail application of an accused
alleged for committing an offence under Ss. 302 & 149, P.P.C, the paramount consideration
should be that he was member of an unlawful assembly and the offence was committed in
furtherance of common object ---Where it appeared that it was in the knowledge of such an
accused that the offence shall be committed in furtherance of common object of u nlawful
assembly, then every member of such assembly shall be responsible for the act committed by
any one of them.
Muhammad Qahir Shah for Applicants.
Yahya Khan, Deputy Prosecutor -General for the State.
Date of hearing: 5th December, 2012.
ORDER
GHULAM MUSTAFA MENGAL, J. ---The applicants Safi Ullah, Khaliq Dad,
Noor Ahmed, Shehzad, Ali Hassan, Wazeer, Sakhi, Abdul Samad, Ghulam Rasool, Jalil
Ahmed, Dilshad, Abdul Qayyum, Muhammad Azeem alias Fareed and Ghulam Sadiq, seek
bail in case F.I.R. No.80 of 2012 lodged by complainant Malik Murad Khan, S. -I./S.H.O. at
Police Station, Jinnah Town, Quetta on 17th August, 2012, with the averments that the
complainant along with other Police officials were on routine gusht. During gusht the
complainant r eceived information that cross firing is going on between the two groups on
vacant Bungalow, situated at Killi Juma Khan, due to which some people have been killed
and various others are injured. On receiving this information the police party including the
Anti-Terrorist Force reached at the place of occurrence at 7 -00 p.m. On seeing the police
party accused Kamal Khan Sanjarani along with his companions escaped from the scene of
occurrence, while from the opposite group, the police party arrested accused p ersons namely
Safi-ullah son of Abdullah, Ali Hassan son of Atta Muhammad and Khaliq Dad son of
Jumma Khan on the spot armed with deadly weapons, whereas the remaining accused
persons namely Muhammad Azeem alias Fareed son of Muhammad Ibrahim, Jalil Ahmed
son of Muhammad Ibrahim, Abdul Qayyum son of Muhammad Ayub, Noor Ahmed son of
Ilahi Bakhsh, Shehzad son of Muhammad Yaqoob, Abdul Samad son of Sooba Khan, Sakhi
son of Gulab, Abdul Rasool son of Jumma Khan, Dilshad son of Jumma Khan, Wazir son of
Gulab, G hulam Sadiq son of Ilahi Bakhsh were apprehended. It is further alleged that one
SMG three magazines and total 423 live rounds were recovered from possession of Safi -
Ullah. A Short Gun repeater along with 2 live rounds were recovered from possession of
accused Ali Hassan and .32 bore Pistol along with 2 live cartridges were recovered from the
possession of Khaliq Dad, which were taken into possession through recovery memo in the
presence of the witnesses. On enquiry accused Safi -Ullah disclosed that he is p erforming
duties with Sardar Sanaullah Zehri. The Pick -up No.IDP -2359 is official vehicle and they
were sent by Sardar Doda Khan Zehri for taking possession of Bungalow and when they
reached near the said Bungalow the accused Kamal Khan Sanjarani and his c ompanions
started firing on them and due to cross -firing Sher Muhammad son of Muhammad Umar,
Ghanwar Khan son of Muhammad Hassan died at the spot, while Abdul Wahid son of
Muhammad Haneef, Abdul Haq son of Gohar Khan and Gohar Khan son of Muhammad
Siddique sustained firearm injuries from Kamal Khan Sajari Group. It was also alleged that
besides rival groups innocent persons namely Syed Azmatullah son of Syed Abdul Nafey,
Muhammad Usman son of Hameedullah and minor Aqeela daughter of Haq Nazar also
sustained firearm injuries. On the stated allegations the instant F.I.R. under sections 302 324
147,148, 149, P.P.C. read with section 7 Anti -Terrorist Act, 1997 was lodged against the
accused/applicants and they were arrested.
2. A bail application was moved be fore the Additional Sessions Judge -V, Quetta, who
after hearing the parties, rejected the same vide order dated 25th October, 2012, hence this
bail application.
3. Mr. Muhammad Qahir Shah, learned counsel for the accused/applicants states that the
accuse d/applicants are innocent and have been falsely implicated in this case with mala fide
intention and have no concern whatsoever with the alleged offence. He further states that no
specific role has been attributed to the accused/applicants which could conn ect them with the
commission of offence. There are general allegations against the accused/applicants. No
recovery has been effected from them. He further states that it is yet to be ascertained as to
which of the party is aggressor and who has been aggre ssed upon, therefore, applicants case
falls within the ambit of further inquiry into their guilt. He further states that the
accused/applicants are behind the bars since the date of their arrest and are no more required
by the police, thus they are entitle d to the concession of bail. In support of his arguments
reliance was placed upon the reported judgments 2004 PCr.LJ 127 and PLD 1995 -K 459.
4. Mr. Muhammad Yahya, learned Deputy Prosecutor -General has opposed the bail
application.
5. I have heard the learned counsel for the parties at length and with their assistance,
have perused the record of the case minutely.
6. The main stress of the learned counsel for the accused/applicants was that the
allegations against the accused/ applicants are general and it is yet to be ascertained as to
which of the party is aggressor and who has been aggressed upon. It is well -settled principle
of law that while deciding a bail application of an accused alleged for committing offence
under section 302, or 149, P.P.C. the paramount consideration should be that he was a
member of an unlawful assembly and the offence was committed in furtherance of common
object. If there appears that it was in knowledge of such an accused that the offence shall be
committed in furtheran ce of common object of unlawful assembly then every member shall
be responsible for the act committed by any one of them and if the offence committed falls
within the prohibitory clause of section 497, Cr.P.C. the bail shall be refused to each of the
accus ed person.
7. In the present case due to firing of accused persons, Sher Muhammad and Ghanwar
Khan died at the spot while, Syed Azmatullah, Muhammad Usman, minor Aqeela and
accused Abdul Ahad, Abdul Haq and Gohar Khan sustained bullet injuries. The alleg ation of
causing firearm injuries was supported by the statements of injured P.Ws., recorded under
section 161, Cr.P.C. recovery of lethal weapons from the accused/applicants Safi Ullah, Ali
Hassan and Khaliq Dad as well as medical reports of the injured a nd dead persons. Thus the
accused/applicants being members of unlawful assembly are not entitled for concession of
bail at this stage. The case -laws cited by the learned counsel for the accused/applicants are
distinguish -able with the circumstance of the present case and does not help the case of
applicants.
8. In view of the above discussion, I am inclined to reject this bail application. However,
the learned trial Court is directed to record evidence of material witnesses within three
months from the d ate of receipt of this order, whereafter, the applicants shall be at liberty to
repeat their bail application before the trial Court, which shall be decided on merit.
9. The observations made herein -above are tentative in nature only for the purpose of
disposal of bail application and same shall not influence the mind of the learned trial Court
while deciding the case.
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