MUREED Versus GOLO AND 8 OTHERS

ORDER

Complainant Mureed in Crime No.62/1995 registered at Police Station, Badin is aggrieved by the order, dated 8-8-1995 passed by learned Sessions Judge, Badin granting bail to respondents Golo and seven others for the offences under sections 302, 324, 337-A, 337-F, 147, 148, 149, P.P.C. culminating in the murder of deceased Muhammad and injuries to complainant Mureed, P.W. Meenh Wassayo, Mst. Phapoo and Mst. Haleema. By an earlier order, dated 23-7-1995 learned Sessions Judge had declined bail to these accused in the same crime on same evidence.

2. Facts of the case in brief are that on 23-6-1996 complainant Mureed and his brother Meenh Wassayo, his nephews Muhammad and Dodo after opening watercourse for irrigation of their lands returned their home at about 6-30 p.m. When near the houses of the parties at Haita Bus Stand respondents assaulted them. It is alleged that respondent Jumo was armed with a gun, respondent Mamoon was carrying a revolver while the remaining persons were armed with hatchets and Lathis. It is said that accused Hamir dealt a hatchet blow to deceased Muhammad on his left side head, respondent Ali Muhammad caused hatchet blow to complainant Mureed, respondent Muhammad son of Billo dealt a hatchet below to, Meenh Wassayo, respondent Pandhi dealt a hatchet blow to Mst. Heleema (mother of the deceased) whereas respondent Mamoon caused fire-arm injuries to Mst. Phapoo. Deceased Muhammad while in injured condition was removed to Civil Hospital, Badin where he succumbed to the fatal hatchet wound the next day. While this report was lodged at police station at 9-00 p.m. respondent Hamir filed a counter-report at 9-30 p.m. against Mureed, Acher, Muhammad Siddique, Umer and Dodo. It was alleged in the counter F.I.R. that the incident was preceded by exchange of hot words between the parties whereupon Meenh Wassayo fired from his gun at Ali Muhammad who sustained as many as 12 fire-arm injuries on his person. It was alleged that Hamir, Muhammad son of Billo as well as Dodo also sustained fire-arm injuries on their persons. It was admitted in this F.I.R. that Hamir and others being armed with hatchets and Lathis, Mureed, Muhammad, Dodo and two ladies had also sustained injuries on their persons in the incident.

3. Earlier application for bail moved by the present respondents as well as an application moved by Mureed and Achar after hearing were rejected by a common order, dated 23-7-1995 by the learned Sessions Judge but the said order was not impugned by any of the parties.

4. It is stated at the Bar that after a lapse of four days on 27-7-1995 respondents moved second application for bail which was granted by learned Sessions Judge vide order, dated 8-8-1995 which has been impugned in this application.

5. It is the grievance of the applicant that learned Sessions Judge having refused bail to the respondents on same set of facts and circumstances acted illegally and in derogation of the settled principles of law by exercising the discretion for grant of bail in favour of the respondents only after a lapse of fifteen days. Reliance is placed on Supreme Court judgment in the case of State v. Zubair and 4 others PLD 1986 SC 173. In this case Honourable Supreme Court apart from laying down other principles for the grant or refusal of bail held that the second bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh ground and made the basis of any subsequent bail application.

6. There is no cavil with the factual aspect that there was no change in the circumstances of the case except that the injured persons had been discharged from the hospital when the second bail application was granted by the learned Sessions Judge. It is, however, admitted that final medico-legal certificates were issued on 18th October, 1995 long after the grant of bail.

7. Learned counsel for the respondents was at pains to distinguish the facts leading to the grant of bail and supporting the impugned order by saying that in the earlier order, learned Sessions Judge had made observations that the final medico-legal certificates being not issued, the application for bail was premature but there is hardly any substance in this submission as the said certificates were issued more than two months after the grant of bail.

8. Learned counsel also contended that in view of serious and numerous fire-arm wounds caused to accused respondent Ali Muhammad at the hands of complainant party and there being counter-versions of the incident learned Sessions Judge was justified in exercising, the discretion in favour of the respondents but he had no answer to the proposition of law laid down by their Lordships of the Supreme Court in Zubair's case. Since the learned Sessions Judge found no merit in the ground urged on, the earlier occasion strictly speaking he was not justified and entitled to take a different view just after a lapse of two weeks and pass an order contrary to the earlier order.

9. It was lastly urged that the earlier order being wrong and incorrect on the facts of the case, respondents should not be deprived of the concession of bail rightly exercised in their favour. There is no merit in this submission. No exception was taken to this order by the respondents before, which remained intact and held the field. A perusal of the impugned order however, tends to show that learned State Counsel had conceded to the grant of bail before the Sessions Judge in favour of respondents Golo, Muhammad, Pandhi, Jumo and Dodo. In view of the part played by them in the commission of the crime, learned counsel for the applicant does not press the cancellation of bail in so far as these five respondents are concerned. Learned A.A.-G. however, does not support the grant of bail to them for the reason that these respondents would be liable for their act by operation of section 149, P.P.C. I am not inclined to agree with the learned A.A.-G. in this particular case for fair play, good conscience and equity demand that where the victim of a person prosecuting a remedy on g his behalf agrees to a concession by forgiving the act of an accused, the Court should lean in favour of grant of concession by dispensing justice with mercy rather than creating hardships.

10. For the aforesaid facts and reasons bail granted to respondents Hamir, Mammon and Ali Muhammad is cancelled as they are prima facie directly involved in the commission of the offences falling within prohibition clause.' They shall be taken into custody and remanded to jail.

N.H.Q./M-130/K Order accordingly.