SAFI ULLAHand 13 others vs The STATE
This matter arises from a bail application filed by Safi Ullah and 13 others seeking post-arrest bail in F.I.R. No.80 of 2012 registered at Police Station Jinnah Town, Quetta, under sections 302, 324, 147, 148, and 149 of the Pakistan Penal Code read with section 7 of the Anti-Terrorism Act, 1997, following a shootout between two rival groups resulting in multiple deaths and injuries. The core legal question is whether the applicants, who were allegedly part of an unlawful assembly engaged in cross-firing, are entitled to post-arrest bail when lethal weapons were recovered and incriminating statements implicated them. The Balochistan High Court held that the applicants, being members of an unlawful assembly whose common object involved violent acts resulting in fatalities and injuries supported by medical and recovery evidence, are not entitled to bail at this stage. The court laid down the principle that members of an unlawful assembly whose common object culminates in offences falling within the prohibitory clause are generally not entitled to bail, and tentative assessment of record suffices for declining relief.
- Whether members of an unlawful assembly involved in cross-firing resulting in deaths and injuries are entitled to post-arrest bail?
- Does the recovery of lethal weapons and incriminating statements from accused persons preclude the grant of bail in heinous offences?
- Whether the question of who is the aggressor in a sudden cross-firing incident warrants further inquiry for the purpose of bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
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 received 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 persons 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 sort 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, Ghulam 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 performing 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 companions 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 before 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 accused/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 connect 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 aggressed 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 entitled 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 furtherance 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, B the bail shall be refused to each of the accused 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 Ageela and accused Abdul Ahad, Abdul Haq and Gohar Khan sustained bullet C injuries. The allegation 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 and dead persons. Thus the accused/applicants being members of unlawful assembly are hot entitled for concession of bail at this stage. The case-laws cited by the learned counsel for the accused/applicants are distinguishable 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 date 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. 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.