MOUNDAR AND 3 OTHERS Versus THE STATE

ORDER

1. Granted.

2. On 20-6-1985 at 6-00 a.m. complainant and his brother Mohammad Nawaz and his son Muhammad Ayub had gone to graveyard, it being Eid day. Many other persons including Mohammad Malook, Ghulam Nabi and Rafiq had also come there for the same purpose. At that time, it is alleged that, accused Moundar and Wali Mohammad who were armed with country made pistols, Rakhioo, Ramzan, Nizam, Haji Mehboob, Rasool Bux and Ludho who were armed with guns and accused Haji Jumo who was armed with rifle came there and challenged the complainant party. They fired from their rifle, guns, and pistols and killed Mohammad Malook, Mohammad Ali, Mohammad Nabi and Ghulam Nabi and caused grievous injuries to Rafiq Ahmed. Thereafter, they took away the licensed gun and revolver of Mohammad Malook. Prior to this bail application was made on behalf of accused Rakhio which was dismissed by me on 16-4-1986.

2. The present application is made on behalf of Mounder and others and is pressed only on the ground that they have remained in custody as under trial prisoners and a period of more than two years has expired. The learned Additional Sessions Judge was of the view that the delay in the trial was occasioned by accused themselves.

3. Mr. Mohammad Hayat Junejo, Advocate has taken me through the diary of the case and has submitted that even the P.Ws. were not present on the hearing on which the defence counsel was shown to be absent, and therefore, the learned trial Court was not justified in coming to the conclusion that the delay would be attributed to the accused themselves. This submission of Mr. Junejo appears to be reasonable.

4. It was pointed out by the learned A.A.-G. that the facts and circumstances of the prosecution case indicate that the accused were dangerous and desperate persons. The applicants were members of an unlawful assembly and were armed with deadly weapons and in prosecution of the common object of that unlawful assembly as many as 4 persons were killed and an attempt was made to kill the 5th person causing him grievous injuries. As such the applicants were not entitled to the benefit of the above proviso. The contention of the learned A.A.-G. is correct. There can be no doubt about the fact that the alleged offence was most heinous and was committed in such a way that the only conclusion that can be drawn from the same is that the applicants were dangerous and desperate persons.

5. Mr. Mohammad Hayat then relied upon the case of Sanam Shah and others v. The State reported in 1986 P Cr. L J 2947 wherein bail was granted to the applicants although as many as 10 persons were killed, and the case of Mashooq reported in P L D 1987 Kar. 667 where the above decision was followed and it was held that seriousness of the alleged offence or its nature could not deprive the accused of their statutory right to bail. He then referred to the case of Gul and others v. The State reported in P L D 1986 Kar. 629 and submitted that the refusal of bail to the applicant in that case on the ground that the offence alleged to have been committed by the accused was heinous, was not approved by the Supreme Court and leave to appeal was granted in the decision reported in 1986 S C M R 1825 to resolve the controversy that had arisen due to the above two inconsistent views. The appeal was allowed and the short order of the Supreme Court has been produced. The order does not give any reasons, which of course are to be recorded separately. It, therefore, cannot be said whether the Hon'ble Judge of the Supreme Court disapproved the view taken by this Court in the case of Gul Khan and others or not. So long as the Supreme Court does not announce the reasons the controversy cannot be considered to have been resolved.

6. I am inclined to agree with the view taken by this Court in the case of Gul Khan referred to above that bail cannot be granted to the accused on the ground of delay in conclusion of the trial if the nature of the offence alleged to have been committed by them was such that it appeared, therefrom that they were desperate and dangerous. The bail application .is, therefore, dismissed. The same may be repeated if the Supreme Court does not agree with the view of law taken in Rahim Khan's case.

7. S.A./M-403/K Bail refused.