TODO and anothers vs THE STATE

ORDER

1. ' The relevant facts are contained in the F.I.R., which reads as follows:-- ' "Complaint is that I alongwith my family reside at the abovementioned address and am driver on the tractor of Rais Shamir Khan Rahoo. Today dated 26-2-2000, I alongwith my father Nawab, son of Bagh Ali Zardari, (2) Hanif son of Fazil Muhammad (3) Arbab had come to purchase a kid of goat from the cattle Piri Panj Moro. When we were seeing the kid goat there, at about 10-30 hours the accused namely (1) Shamir son of Wali Muhammad Rind, (2) Todo son of Sain Bux Rind (3)

2. Moharram son of Ali Muhammad, (4) Gul son of Sain Bux Rind Resident of Bahgo Rind came there and instantly told the people to move away. Out of them Shabir Rind had a .12 bore pistol in his hand and put it on the forehead of my father. Todo Rind and Moharram Rind had .12 bore guns in their hands and Gul Rind had a hatchet in his hands, who pointed the same towards us. Shabir Rind straightaway fired on the head of my father Nawab who fell down. The other persons who were standing there ran away. Thereafter, in front of us Shabir Rind emptied the pistol, threw the cartridge on the earth/ground, loaded another cartridge and inflicted another shot on the left side of the chest of my father and thereafter, the above named accused persons fired in air from their guns, rebuked us and said that today we have taken our revenge which was due against us.

3. Thereafter. I saw that my father Nawab had died instantly. Thereafter, I left my uncle Arbab and maternal-cousin Hanif at the place of Wardat and have come to lodge the complaint that Shabir Rind, (2) Todo Rind, (3) Moharram Rind and (4) Gul Rind being in collusion have killed my father Nawab and one firing in the air from .12 bore pistol. Previously namely Dittal son of Ali Bux and Gul Hassan have been telling us now and then that they will take revenge from us. Thereafter, today the above accused on the instigation of Dital Rind and Gul Hassan, and being in collusion have murdered my father Nawab by firing from a .12 bore pistol."

4. ' Mr. Abdul Sattar Kazi, learned counsel has submitted that there is allegation of instigation only against the applicants Todo and Mohrram. The fatal injury is alleged to have been caused by co- accused Shabir. He has submitted that in the circumstances when no overt act is attributed to the applicants, they are entitled for bail, more particularly because there is a trend in this country to involve more and more innocent persons by the complainant party. In support of his contention he has placed reliance on the judgment of Lahore High Court reported in Muhammad. Sarwar v. The State 1997 PCr.LJ 418. A. Perusal of this judgment shows that the facts are totally distinguishable, because in the cited judgment F.I.R. Was lodged after a delay of more than 34 hours and wild allegations were levelled against the accused and large number of persons including the petitioner belonging to the same family were implicated. There were no eye-witness to the occurrence. This judgment is, therefore, of no help to the applicant. He has next placed reliance on the judgment of Honourable Supreme Court reported in 1996 SCM R 1654, in which the bail was granted to the accused person: who were alleged to keep on firing and raising Lalkara at the time of occurrence. Reliance has been placed on another judgment of Honourable Supreme Court of Pakistan 1999 SCM R 1360, in which the bail was granted where no overt act was allegedly ascribed to the accused except of ineffective firing, which also stood disproved because no empty was recovered from the spot. Mr. Kazi has also placed reliance on another authority of Honourable Supreme Court in which bail was granted by Sessions Court and was cancelled by High Court and Honourable Supreme Court of Pakistan set aside the order of High Court and restored the order of Sessions Court granting bail. The facts were that accused were not alleged to have caused any injury to the deceased. I am of the opinion that none of the judgments entitles the accused for grant of bail. The reason being that the overt act is attributed to the applicant in this case and according to my opinion the overt act does not mean merely causing of injury. The entire facts and circumstances of a case are to be seen for the purpose if any overt act has been attributed or not.

5. In the facts of the present case the F.I.R. Has been lodged promptly, there are eye-witnesses and the incident had taken place at cattle Piri where large number of persons remain present, therefore, normally it would not be possible for a single person to commit murder in the midest of crowd. Thus, prima facie there appears to be nothing unusual in the prosecution story contained in the F.I.R., that all accused came together armed with weapons and one of them namely Shabir kept pistol on the head of deceased and the applicant Todo and Muharram who were armed with .12 bore guns pointed out the same towards other witnesses in order to scare and keep them away, with the result that although the witnesses -were present there but they could not intervene. So far the judgment of Honourable Supreme Court reported as 1999 SCMR 1230 is concerned it was a case of cancellation of bail by the High Court and it is a trite law of the criminal administration of justice that the consideration for grant of bail and cancellation of bail are not the same. The considerations for grant of pre-arrest bail, after arrest bail and cancellation of bail order are entirely different. Once bail is granted to any accused by a Court of competent jurisdiction a vested right is accrued to him and thereafter, there should be a very. Strong reason for cancellation of bail by the superior Court. Thus, the last judgment is not relevant in the context of present application. I am of the opinion that since the accused are named in the F.I.R. Overt act is attributed to them and they are alleged to have reached the scene of offence together armed with deadly weapons and the F.I.R. Has been lodged promptly, therefore, prima facie they appear to have committed offence in furtherance of their common intention.

6. ' For the foregoing reasons the bail application is rejected.