1998 P Cr (PLP)

The learned counsel for the applicant in support of the application has submitted that the names of both the respondents/accused appear in the F.I.R. and that they came with the co‑accused duly armed with Gun and Hatchet. The learned counsel further submits that the accused Bair who was armed with SBBL Gun also fired at the complainant party and that both of them having participated in the Crime and having common objects were not entitled to bail; for which merits cancellation. The learned counsel in support of his arguments has relied upon decisions reported in 1991 SCMR 1849, 1997 PCr.LJ page 202, PLD 1990 Lah. 424 and 1979 SCMR

114. The learned counsel for the respondents 1 and 2 in rebuttal submitted that the accused Bair was said to be armed with S.B.B.L. Gun but he did not cause any injury to the deceased and there is also no such allegation against the accused Ahmed to have used his hatchet. The allegations against the accused Bair are of ineffective firing causing no injuries to any one. The enmity over the land is admitted. The common object if any, will be determined at the Trial, after evidence is recorded. The other submissions of the learned counsel are that there are counter cases between the parties and it is yet to be determined at trial as to which of the parties it aggressor, till then, the accused are entitled to bail. The learned counsel further submits that the accused have not misused concession of bail and that the learned Trial Court has granted bail on sound reasons considering all the aspects of the case. The learned counsel in support of his contentions has relied upon 1996 SCMR page 1845, 1995 SCMR page.343, 1972 SCMR page 682, 1993 SCMR 1992, 1981 SCMR page 771 and 1984 PCr.LJ 2290. The learned counsel for the State has not supported the cancellation of bail. I have considered the respective contentions of the learned counsel of the parties I have also gone through the case‑law, referred to above. There appears come dispute between the parties over the land, which fact has been admitted by the applicant in the F.I.R. The accused Bair is alleged to be armed with gun but admittedly there is no allegation against him that he caused any injury to the deceased. There are allegations that he fired at the complainant party but there is no allegation that any person amongst the complainant party had received any injuries. Similarly,, there is no allegation against the accused Ahmed that he used his hatchet or caused any injury to any one. No counter‑F.I.R. has been filed by the parties but for the Bail order and from the arguments of learned counsel for the parties there appears counter F.I.R. and direct complaint filed by the co‑accused Acho. In that case, it is yet to be determined as to which party is aggressor. In the Shoaib Mehmood Butt v. Iftikhar‑ul‑Haq and others reported in 1996 SCMR 1845, it was held by the Honourable Supreme Court that in the case of two counter‑versions arising from the same incident one given by complainant in F.I.R. and the other given by the opposite party, such cases were covered for grant of bail of further enquiry as contemplated under section 497(2), Cr.P.C. In the case of Mst. Shafiqan v. Hashim Ali and others reported in 1972 SCMR 682, bail was granted on the ground that there were counter version and it was not cancelled by the Honourable Supreme Court. In the case of Sultan Ahmed v. State reported in 1981 SCMR page 771, bail' granted to the accused who was armed with fire arm, but the deceased had died by fire‑arm injury attributed to another accused as in the present; case. In this reported case, it was also held that applicability of section 149, P.P.C. was still to be determined. In Rafiq Khan v. State 1995 SCMR page 343 and Amanat Ali v. State 1193 SCMR 1992 bail was granted to accused on the ground of Lalkara. The order of the learned Trial Court shows that the parties were indulged in Civil litigation also. There are also no allegations that the accused have misused the concession of bail granted to them. Applicability of section 149, P.P.C. is yet to be determined as held in 1981 SCMR page

771. The decisions cited by the learned counsel for the applicant are of no help to his contentions and are distinguishable to the facts of the present case and are not applicable in view of the case‑law referred to above. The State counsel has also not supported the cancellation of bail of the accused. Considering all the aspects of the case and the case‑law discussed above, I am of the view that there is no illegality in the order of the learned Trial Court, granting bail to the respondents Nos. 1 and 2 and I see no reason to interfere with the impugned order. The up shot of the above discussion is that the application under section 497(5), Cr.P.C. filed by the applicant has no merit, which is dismissed. A.A./M‑242/K???????????????????????????????????????????????????????????????????????? Application dismissed.