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Criminal Suo Motu Reference No. 11 of 1984, decided on 21st June, 1984.

‑‑‑S.497(5)‑‑Penal Code (XLV of 1860), 5.302‑‑Bail cancellation of‑‑No delay in lodging report and names of all accused petitioners mentioned in F.I.R.‑‑Occurrence a daylight incident leaving no room for mistaken identity‑‑Ocular evidence also getting support from medical evidence as well as from recovery of weapons of offence‑‑Prima facie case under 5.302, P.P.C., held, made out in circumstances‑‑Bail granted by trial Judge, cancelled.

M.I. Memon and A.A. Muhammadally for the State.

Raja Qureshi for Respondents.

Dates of hearing: 23rd, 24th April and 27th May, 1984.

This suo motu criminal reference has been registered against the order, dated 28th September, 1983 of IInd Additional Sessions Judge, Sukkur, whereby he granted bail to the respondent in a case under section 302/34, P.P.C. and 13(d) of Arms Ordinance. Show‑cause notices were issued to the respondents and they have appeared.

2. Briefly stated the prosecution case is that on 21‑2‑1983 in the morning time Nazar Muhammad and his brother Abdul Ghafoor left their house early in the morning and were going to their fields. When they reached near land of Ghulam Mustafa, there came accused Muhammad Sharif, Ghulam Mustafa and Abdul Ghafoor sons of Rehmat Ullah and Muhammad Siddique alias Muhammad Hanif son of Muhammad Sharif all caste by Arain from the sugar cane crop of Muhammad Sharif. Accused Ghulam Mustafa had a rifle while three others had guns. Muhammad Siddique gave a Hakal and told his companions that Abdul Ghafoor has arrived and he should not be spared. On this Ghulam Mustafa fired a rifle shot directly at Abdul Ghafoor while Muhammad Sharif, Muhammad Siddique and Abdul Ghafoor fired from guns. He fell down and died. On cries and gunshots reports Noor Muhammad Chachar, Karim Bux Chachar and Manzoor Ahmad came running. On seeing them Ghulam Mustafa again fired a rifle shot at Noor Muhammad who also fell down and subsequently he also died. All the accused ran away with their weapons. Nazar Muhammad went and lodged the report at Police Station Ubaru. His report was registered under section 302/307/34, P.P.C. and 13‑D, Arms Ordinance at 2.00 a.m. The motive as mentioned in the F.I.R. is that prior to this incident respondent Muhammad Sharif sustained injury for which Ghulam Mustafa and Muhammad Sharif filed a case against the complainant party.

3. On 8‑9‑1983 bail application was moved and it was fixed on 13‑9‑1983. On 14‑9‑1983 application on behalf of Ghulam Muhammad and Muhammad Siddique was withdrawn. However, again on 24‑9‑1983 the defence counsel argued the bail applicat4on of all the respondents and Additional Sessions Judge on 28‑9‑1983 granted bail to all accused. The cancellation application was also moved on 10‑10‑1983 which is still pending and no order has been passed.

4. The Additional Sessions Judge has granted bail on the grounds mentioned below and concluding para of his bail order is reproduced as under:‑

"After hearing the learned Defence counsel, the A.P.P. and the Complainant's counsel and after going through the police record, it is quite obvious that ocular evidence has been contradicted by Medical evidence suggesting clear contradiction discussed above. There is mistake in the timings of admission of injured Noor Muhammad in the hospital and preparation of Mashirnama of his injuries. The legal aspect of all the above‑cited rulings indicates, in my opinion, existence of further inquiry to be needed before any reasonable ground can be said to exist connecting the accused applying for bail with the commission of any offence punishable with capital punishment and therefore this case is fully covered by section 497(2), Cr.P.C. and further inquiry into the guilt of the accused and therefore, I admit the above‑named four accused to bail each in the sum of Rs.25,000 and P.R. bond in the like amount each. Any observation regarding evidence made in this case, is of tentative nature only for the purpose of bail matter."

5. I have heard Mr.Raja Qureshi Advocate for the respondents and Mr. A. A. Muhammadally, Assistant Advocate‑General and perused the record of the case.

6. This incident took place early in the morning at about sunrise time and F.I.R. has been lodged at 8.00 a.m. whereas Police Station Ubauro is at the distance of 10 K.M. therefore there is no delay in lodging the report. The names of all the respondents /accused have been mentioned in the F.I.R and it is a daylight occurrence hence there is no possibility of any mistaken identity. It has also specifically been mentioned in the F.I.R that respondent Ghulam Mustafa was armed with a rifle and he fired rifle shots at deceased Abdul Ghafoor as well as at deceased Noor Muhammad. The post‑mortem report of Noor Muhammad shows that he sustained one lacerated penetrating wound 3/4 c.m. x 3/4 c.m. x bone deep (wound of entry) on back at upper half of the left scapula to upper half of the left chest below medial 1/3 of half clanicle 2 cm x 2 cm (wound of exit) caused by fire‑arm like rifle. Deceased Abdul Ghafoor sustained four injuries caused by fire‑arm, therefore the ocular evidence gets support from the medical evidence about the weapons used in the offence and other circumstances. There is some corroborative piece of evidence as rifle has been recovered from Ghulam Mustafa while guns were recovered from Abdul Ghafoor and Muhammad Hanif. The empties of rifle and cartridges were also found from the Wardat and the report of ballistic expert is awaited. The Additional Sessions Judge has not applied his mind properly while granting bail to the respondents and in my opinion has wrongly held at the bail stage that ocular evidence has been contradicted by medical evidence whereas the facts are contrary to the observations made in the order when medical officer has not yet been examined. This is a case where two persons lost their lives and the evidence has not come on record therefore respondents do not deserve concession of bail.

In view of the above discussion and the evidence the prima facie case under section 302/34, P.P.C. and 13‑D, Arms Ordinance has been made out. I, therefore, cancel the bail of the respondents and order that they should be remanded to custody. In view of the obser vations made by the IInd Additional Sessions Judge in bail order it is advised that the Sessions Judge should try this case himself or transfer to some other Judge having jurisdiction for trial. These observations are of tentative nature and respondents are at liberty to repeat their bail after some evidence is recorded.

S. G. D. Bail cancelled.

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