ABDUL GHAFFAR Versus SAKHI SULTAN
1. JAVID IQBAL, J.-- This appeal by special leave of this Court challenges the order dated 1st April, 1986 passed by a learned Single Judge of the High Court of Sind Karachi whereby three criminal miscellaneous petitions of respondents Nos.l to 3 relating to the grant of bail in a case under section 302/307/34, P.P.C. registered against them were disposed of. The background is that Hanif Shah accused armed with revolver, alongwith Sakhi Sultan respondent No.1 armed with gun, Altaf head constable respondent No.2 armed with pistol and Mohammad Aslam respondent No.3 armed with gun had been implicated in a case under section 302/307/34, P.P.C. for having committed the murder of Abdul Sattar deceased and for having caused fire-arm injuries to eight other persons, namely, Abdul Ghaffar complainant-appellant brother of the deceased, Mst.Feroza sister of the deceased, Mst.Rajab Khatun sister-in-law of the deceased, Tariq, Abdur Rashid, Ayaz, Jumma and Mohammad Saeed all not related but residents of the area, on 5th February, 1985 at 8-30 p. m. in Shah Bag Lane near Liari Hospital, Police Station Baghdadi, Karachi. All the four were specifically named in the F.I.R. lodged on the same day at 9-15 p.m. by Abdul Ghaffar appellant. Apart from the eight injured persons the occurrence was also witnessed by Mohammad Nazir, Mohammad Yaqub and Nisar Ahmad. The motive for the crime is that the father of the deceased alongwith his nephew and his mother Mst.Rajab Khatun (injured) had property near Liari Hospital which consisted of houses. This property was being looked after by Mohammad Nawaz another brother of the deceased. 3/4 months before the present occurrence Mohammad Nawaz gave one of the houses on rent to Mst.Bashiran. On the day of occurrence at about 10 a.m. Hanif Shah accused alongwith respondents Nos.l to 3 came to this house and threw away the household articles of Mst.Bashiran tenant. Thereafter, they locked the door of the said house from outside, whereupon Mst.Bashiran went to the police station and lodged report against their highhandedness (page 70-A of the printed paper book). The occurrence is reported to have followed thus: On the same evening at about 8-30 p.m. the accused party armed as described above again came to the house of Mst.Bashiran, and Hanif Shah accused with the help of respondents Nos.l to 3 tried to place his own household goods in that house. Thereupon Abdul Ghaffar appellant alongwith the deceased came there and tried to stop the accused party from forcibly occupying the said house. They both were followed by Mst. Feroza and Mst. Rajab Khatun. On seeing them respondents Nos.l to 3 alongwith Hanif Shah accused started firing indiscriminately and due to their indiscriminate firing the deceased as well as eight other persons mentioned above sustained fire-arm injuries. The accused party escaped after the commission of crime and the occurrence was likewise witnessed by Mohammad Nazir, Mohammad Yaqub and Nisar Ahmad besides others who came there. The deceased died while he was being taken to the hospital.
2. So far as the police investigation is concerned the following were picked up from the spot:
3. One .12 bore crime empty,
4. One 32 bore crime empty, one crime pellet,
5. Four 32 bore crime empties, and
6. Two crime pellets.
7. A revolver and gun which are alleged to have been used in the commission of crime had been recovered at the instance of Hanif Shah accused. These fire-arms are also matching with some of the crime empties picked up from the spot. All the injuries sustained in this case by the deceased as well as injured persons had been caused by fire-arm. It is evident that out of the eight injured persons three are related to the deceased whereas five are unconnected persons being only the residents of the area.
8. The background further is that Sakhi Sultan respondent No.1 moved an application for the grant of bail before the First Additional Sessions Judge, South, Karachi which was refused on 10th September, 1985. Then he moved a petition before the High Court of Sind which was heard by a learned Single Judge who vide his order dated 13th October, 1985 accepted the same admitting Sakhi Sultan respondent No.1 to bail on the ground that at the alleged time of occurrence he was on duty as security guard at Karachi Shipyard. Thereafter, Altaf and Mohammad Aslam respondents Nos.2 and 3 moved application for the grant of bail before the Sessions Court, Karachi and for the reason that since a learned Single Judge of the High Court of Sind, Karachi had granted bail to Sakhi Sultan co-accused respondent No.1, the First Additional Sessions Judge, South, Karachi vide his order dated 10th November, 1985 allowed bail to both Mohammad Aslam and Altaf respondents. However, the bail application moved in the Sessions Court by Hanif Shah co-accused was rejected. Eventually the present appellant moved an application before the High Court of Sind Karachi for cancellation of bail previously allowed by a learned Single Judge of that Court to Sakhi Sultan respondent as well as for cancellation of bail allowed to Altaf and Mohammad Aslam respondents by the Sessions Court. In the meantime Hanif Shah accused moved an application for the grant of bail to him before the High Court of Sind. These three matters in the form of Criminal Miscellaneous Applications Nos.213 and 243 of 1986, and one Criminal Bail Application No.224 of 1986 were all taken up together and disposed of by a learned Single Judge of the High Court of Sind. Bail application of Hanif Shah accused was rejected. Applications of the appellant for cancellation of bail allowed to respondents Nos. l to 3 were also rejected.
9. Learned counsel for the appellant before us argued that respondents Nos.l to 3 were specifically named in the F.I.R. for having fired indiscriminately through their fire-arms and as a result of their indiscriminate firing eight persons had sustained fire-arm injuries besides the deceased who died as a result of a shot which had been ascribed by the eye-witnesses to Hanif Shah accused. The occurrence took place at 8-30 p. m. and the matter had been promptly reported to the police by 9-15 p.m. on the same day. The occurrence had been witnessed besides others by numerous injured as well as non-injured eye-witnesses who were not in any way related to the deceased but were residents of the locality. They in their statements before the police had specifically named respondents Nos.l to 3 for having fired indiscriminately alongwith Hanif Shah accused in the course of the occurrence. It was submitted that in such circumstances if Sakhi Sultan respondent had raised the plea of alibi he should have not been granted bail when it was open to the trial Court to make necessary probe into that plea and to come to its own conclusion at the time of the trial. Learned counsel for Sakhi Sultan respondent at this stage attempted to argue that originally on the plea of alibi bail was granted by a learned Single Judge of the High Court of Sind to his client on 13th October, 1985 but the appellant did not challenge that order in appeal before the Supreme Court. Instead he moved an application for cancellation of his bail after a delay of four months. It was, therefore, submitted that since the application for cancellation had not even been moved by -the State in this case and no explanation was forthcoming for the delay, the present appeal so far as it relates to Sakhi Sultan respondent should be dismissed on that ground alone. The argument of the learned counsel for the appellant on the other hand is that application for cancellation of bail granted to Sakhi Sultan respondent had been moved on certain fresh grounds which had not been considered previously by the learned Single Judge and that the impugned order of the learned Single Judge also revealed that he had reconsidered the plea of alibi raised by Sakhi Sultan respondent afresh and then rejected application for cancellation of bail. Consequently the order of the learned Single Judge passed on 1st April, 1986 can be challenged before this Court. It was next argued by the learned counsel for the appellant that there was no justification on the part of the learned Single Judge to reject cancellation of bail application in respect of Mohammad Aslam and Altaf respondents as he did not properly take into consideration the effect of the absconsion of Altaf respondent for 6 to 8 months and of Mohammad Aslam respondent for 13 to 14 days. The grounds on the basis of which they were allowed to remain on bail were erroneous. It was next submitted that nowhere in the impugned order the learned Single Judge referred to the eye-witnesses account or discussed the same. The eye-witnesses account was to the effect that respondents Nos.l to 3 alongwith Hanif Shah accused opened fire indiscriminately and this indiscriminate firing led to the death of Abdul Sattar and fire-arm injuries were sustained by eight other persons. It was submitted that Altaf and Mohammad Aslam respondents were allowed bail by the Sessions Court only for the reason that Sakhi Sultan respondent had already been admitted to bail by the learned Single Judge.
10. We have heard the learned counsel for the parties. In the F.I.R. respondents Nos.l to 3 have been specifically named: The F.I.R. was promptly lodged in this case. In the light of the medical evidence it is evident that fire-arm injuries were sustained by eight persons other than the deceased. All the eye-witnesses had stated that respondents Nos.l to 3 alongwith Hanif Shah accused had fired indiscriminately in the course of the occurrence. In such circumstances when they all had been prima facie implicated, there was no justification for the grant of bail to any of them. We are informed by the learned counsel that trial of respondents Nos.l to 3 and Hanif Shah accused has not yet commenced. Anyway whatever pleas they desire to raise in their defence could be raised at the trial stage but since prima facie they are implicated for the offences under section 302/307/34, P.P.C. they should have not been released on bail.
11. The result is that we accept this appeal and cancel the bail allowed to respondents Nos.l to 3 by the learned Single Judge of the High Court of Sind Karachi.
12. M.Y.H./A-171/S Appeal accepted.