2008 PLP 381 (YLR)

ABDUL RASHEED KALWAR, J.

By this order I intend to dispose of the bail applications of the applicants/accused, who are seeking bail in Crime No.112/2003 of Police Station, Gambat having been registered under sections 302, 324, 148, 149 P.P.C. & 13 (d) Arms Ordinance. This F.I.R was lodged in respect of the incident having been taken place on 3-11-2003 at 1700 hours and was reported at Police Station on 4-11-2003 at 1000 hours. The complainant namely Miral alias Amir Bakhsh has stated in the F.I.R. that complainant party had old blood feud with Ibrahim Narejo Party on matrimonial dispute. The cases between the parties were also pending in the Courts. On the day of incident, the complainant was present in his house, he heard cries and fire reports from outside his house at 1700 hours, whereupon he, Gullan s/o Hadi Bakhsh, Abdul Razzak s/o Allah Bakhsh Narejo, Photo s/o Meeral Narejo, went out of the house along with their licensed arms and saw that Ali Akber alias Ibrahim s/o Ali Nawaz Narejo, (2) Mazhar Ali s/o Akber, (3) Talib Hussain s/o Ali Nawaz, (4) Karim Bux s/o Shahnawaz, (5)Ahmed Ali, (6) Manthar, (7) Nazir, all three sons of Dur Muhammad Narejo, (8) Hasoo alias Muhammad Hassan s/o Mattar, all armed with Kalasnikovs, (9) Muharram, (10) Rajib Ali both sons of Ali Murad, (11) Hashim s/o Ali Madad Narejo, all having gun in their hands were firing upon his sons namely Khadim Hussain aged about 23/24 years and Asmatullah aged about 24/25 years with intention to kill them. The complainant party after taking safe position also fired upon the assailants in their self-defence. The above named accused had also fired upon the complainant party. Co-villagers were attracted and rushed towards the place of incident. The accused ran away along with their weapons on seeing the villagers. Thereafter the complainant found that his son Khadim Hussain had sustained firearm injuries on head, abdomen and other parts of body and blood had oozen. His another son Asmatullah had firearm injuries on his back side of head, forehead and head, blood had oozen, both sons of the complainant were found dead. Gullan had sustained firearm injury on left loin. The dead bodies were brought to the house of complainant; and injured Gullan was taken to Hospital. The complainant while explaining delay in lodging the F.I.R stated that he had gone to see nekmard Rasool Bakhsh Narejo but he was not present when he reached, complainant told him about the incident, then nekmard advised the complainant for lodging the F.I.R, hence he lodged the F.I.R. My attention has been drawn towards the copy of F.I.R No.111/2003 of Police Station, Gambat under sections 324, 147, 148, 149 & 114' P.P.C. and 13(d). Arms Ordinance, having 'been lodged by Talib Ali s/o Ali Murad Narejo, showing same time and place of incident as of Crime No.112/2003, but this F.I.R was lodged on 3-11-2003 at 2200 hours. This F.I.R. appears to me as counter-version of the accused side in respect of the same incident. The applicants/accused were arrested on 22-4-2006, but nothing was recovered from them. At first instance they filed bail application before Additional Sessions Judge, Gambat but it was dismissed vide order dated 16-9-2006. Hence this bail application. Mr. Imadad Ali Awan, Advocate for the applicants/accused has pressed this bail application with following submissions: - (i) Place of vardhat and the time of incident is same in both the F.I.Rs. Nos.111/2003 and 112/2003 but the F.I.R No.111/2003 was filed by the accused party prior to the F.I.R. No.112/2003. (ii) Enmity is admitted, in between the parties. (iii) The injuries have been received by the persons from both sides, however from accused side nobody has been killed. (iv) Allegations are of general in nature and specific allegation of causing murder has not been levelled against the applicant/accused. (v) It is yet to be determined that who caused the fatal injury. (vi) It is yet to be decided by the trial Court that which party was aggressor. (vii) Co-accused Manthar having been shown armed with Kalashnikov in the F.I.R but he has been found blind by the Court of Additional Sessions Judge, Gambat, which shows the false implication of accused persons by the complainant. (viii) No crime weapon has been recovered from the applicant/accused. The learned Counsel for the applicants/accused relied upon the case law reported in 1978 SCMR 195, 1980 SCMR 784, 2002, P.Cr.L.J 1051. Learned Asstt.A.-G. has opposed the grant of bail to the applicants/accused on the grounds that names of the applicants/accused transpire from the contents of the F.I.R. with allegation of firing; injured Gullan has fully supported the complainant's version; 4 empties of Kalashnikov and 3 empty cartridges of gun were found from the spot. He has relied upon the case law reported in 1995 SCMR 1765. Learned Asstt. A.G frankly stated that inspite that of repeated letters post-mortem report of deceased Khadim Hussain was not handed over by Medical Officer Taluka Hospital Gambat, to Investigations Officer of the case, only post-mortem report of deceased Asmatullah alias Achhoo was available on record. Before reverting to the contentions raised by the learned counsel for the applicants/accused, I would like to refer the case-law cited by him. In case of Rehmat Ali v. Hussain reported in (1978 SCMR 195 relevant page 197), the Honourable Supreme Court of Pakistan has been pleased to observe as follows:- "It further appears that the members of the petitioner-party were armed with knife and hatchet and, therefore, the question as to which party was the aggressor did require further inquiry." In the case of Jaffer and others v. The State reported in (1980 SCMR 784 relevant page 785), the Honourable Supreme Court of Pakistan has observed as follows:

"It was next contended that from the available material it could not be said as to who caused the fatal injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry under section 497(2), Cr.P.C." In the case of Muhammad Murad v. The State reported in (2002 P.Cr.L.J (Karachi) 1051 relevant Page 1054, a Division Bench of this Court has observed as follows:

"Is an admitted position that there are cross-cases' between both sides and from each side one person has lost their lives. It is also an admitted position that applicant sides also sustained injuries in the incident. There are two versions of the prosecution case itself goes to create doubt and makes the case against the applicant to be one of further enquiry. It is yet to be determined who is aggressor and who first caused injuries to other side. Keeping in mind the above facts and cross-cases between the parties, we feel that the case against the applicant is also of further enquiry. In view of the contentions and having taken advantage of the aforementioned case law. I am of the view that though delay in lodging of the F.I.R. is not fatal for such type of cases but false implication of the innocent persons cannot be ruled out because a blind person co-accused Manthar was not spared by the complainant party. Said blind accuse was shown to be armed with kalashnikov, having identical role to that of co-accused. Under these circumstances, the trial Court has to decide as to who was aggressor and who had caused fatal injuries to the deceased. The number of empties recovered from the place of vardat do not commensurate with the number of accused. The recoveries of empties from spot shall have little incriminating effect because the weapons were not recovered from applicants/accused. The incident has been reported by the complainant and the accused party by giving their own versions and it is yet to be decided that which version is true and which one is false. Before concluding my observations, I would like to address the objections raised by learned Asstt. A.-G. The case law cited by the learned Asstt. A.-G viz. 1995 SCMR 1765 (Haji Gulu Khan v. Gul Daraz Khan and another is referred to as follows:-- "The Medical evidence shows that the deceased has received three fire-arm wounds of entry. The respondent allegedly was not only armed with pistol but had also fired shot at the deceased. The companion accused also fired shots from pistols at the deceased. The Forensic Science Laboratory report revealed that the two empties recovered from the spot were fired from the licensed pistol of the respondent. On the tentative assessment of the evidence collected against the accused it is not possible to hold that there appear no reasonable grounds for believing that the respondent has been guilty of the alleged offence which is punishable with death or imprisonment for life. The accused and his companions allegedly fired shots from their pistols at the deceased as a result whereof he fell down and died. So, it is wholly immaterial at this stage as to whose shot proved fatal. It would be premature to hold the respondent not vicariously liable for the offence. The submissions made by the learned counsel for the respondent travel beyond the scope of tentative assessment and require deeper appreciation of evidence which is neither permissible nor desirable at this stage. The reasons given by the High Court in support of the impugned order are not convincing and also are not sufficient for releasing an accused on bail in a murder case." In my humble view the facts and circumstances of the above cited case law and the present case are not identical and the case law are quite distinguishable in the circumstances, as in present case neither the crime weapons have been recovered from applicants/accused nor it has been established that the empties recovered from spot were fired from the weapons used by the applicants/accused. I have gone through the 161, Cr. P. C statement of injured Gullan and I do not find any specific allegation in the said statement against the applicants/accused and his statement is almost stereotype of the statement of complainant as stated in the F.I.R. From the' statement of said witness Gullan no additional material connecting the applicants/accused with the offence has been found. Besides it, said injured P.W. is accused in Crime No.111/2003 Police' Station, Gambat. In view of above tentative assessment of record, observations and case law referred to herein above, I am of the considered view that no independent corroboration to oral account of the complainant's version is available on record for establishing the participation of applicants/accused in commission of offence beyond reasonable doubt. In my humble view this is a case of further inquiry under section 497(2)', Cr.P.C. Therefore, bail is granted to applicants/ accused subject to furnishing two solvent sureties in the sum of Rs. 200,000 (Two Lacs) each and P.R bond in the like amount to the satisfaction of trial Court. The Criminal Bail Application No. S-638 of 2006 stands disposed of. N.H.Q./A-117/K Bail granted.