2013 P Cr (PLP)

FAROOQ ALI CHANNA, J.

Applicants through instant application have applied for post-arrest bail in Crime No.54 of 2012 of Police Station Kashmore under sections 302, 324, 147, 148 and 149, P.P.C. lodged by complainant Muhammad Ibrahim.

1. Briefly the facts as stated in F.I.R. are that complainant had enmity with Amanullah Jakhrani over the landed property, such case was registered as Police Station Kashmore against Amanullah Jakhrani who was insisting the complainant to withdraw the case. On the day of incident, (1) complainant Muhammad Ibrahim, (2) his nephew Sahoolat Ali, (3) cousins Ali Bagh, (4) Khando, (5) Zulfiqar Ali, (6) Tariq Ali, (7) Mst. Shahro, (8) Mst. Zuhran, (9) Mst. Heeran Bibi, (10) Mst. Surraya, (11) Mst. Hanifa, (12) Mst. Mehar Khatoon and (13) Mst. Wadi were available in their house when at about 10-30 a.m. accused (1) Arbello armed with gun (2) Meharban, (3) Pir Dad, armed with K.K, (4) Amanullah, (5) Meer Khan, (6) Rozuddin alias Dato, (7) Raman (8) Nihaluddin armed with lathies, (9) Shah Muhammad alias Shehak, (10) Allah Bachayo, (11) Nazimuddin armed with T.T pistols and two unknown persons armed with K.K came there. Accused Arbello challenged the complainant party that since they are not withdrawing case, therefore, they will not be spared. Accused Arbello fired from his gun at Khando, he sustained injuries and fell down. Accused Shah Muhammad alias Shehak, Nazimuddin, Allah Bachayo fired from their T.T pistols at Sahoolat who after sustaining injuries fell down, accused Arbello, Pir Dad and Meharban fired from their respective weapons at Ali Bagh who sustained injuries and fell down. Accused armed with lathies caused lathi blows to Zulfiqar, Tariq Ali, Mst. Shahro, Mst. Heeran, Mst. Surraya, Mst. Hanifa, Mst. Mehar Khatoon and Mst. Wadi with intention to commit their qatl-e-amd. Accused Arbello also fired at complainant but missed he saved himself by falling on ground, the said fire hit Rozuddin alias Dato the companion of accused persons, who after sustaining the fire shot fell down. All the accused thereat the occurrence ran away. Complainant thereafter saw his nephew Sahoolat, cousins Ali Bagh and Khando lying dead having fire shots injuries, accused Rozuddin alias Dato also was lying dead. The Complainant then took the injured persons to Taluka Hospital Kashmore and after admitting them in hospital came at P.S and lodged F.I.R.

2. During investigation the above applicants/accused were arrested and sent up to face trial. Bail application was moved before the trial Court but dismissed.

3. Mr. Muhammad Iqbal Mahar, learned Counsel for the applicant has contended that the case is false and fabricated due to enmity over the landed property admitted by the complainant in F.I.R. Falseness of the case also appears from the admitted fact that accused Meharban, nominated in F.I.R. with specific allegation of causing murder of Ali Bagh, was let off by the I.O. during investigation, such order was not challenged by the complainant before competent forum. Learned counsel mainly has emphasized that the case consist of two versions and it was argued by him that one Sher Muhammad has also lodged F.I.R. No.55 of 2012 at Police Station Kashmore regarding the same incident took place on the same date, time and place with counter-version that the complainant party of this case attacked upon their house causing the death of Rozuddin and injuries to Mir Khan and Raman as such it is yet to be seen after trial that which party is aggressive. Learned counsel for the applicant has contended that on the same ground of counter-versions complainant Muhammad Ibrahim, being nominated as accused of counter F.I.R. No.55 of 2012 has been granted bail by the trial Court as such the present applicant involved in Crime No.54 of 2012 of Police Station Kashmore also deserves the same concession. On this point, learned counsel has relied upon the case reported in 1984 SCMR 600, 1996 SCMR 1845, 2002 PCr.LJ 1051, 2008 SCMR 1448, PLD 2009 SC 58 and 2011 SCMR

606. Learned counsel has further contended that the case has been challaned and the applicant/accused are no more required for further investigation. He requested for grant of bail to the applicants.

4. Conversely Mr. Habibullah Ghouri, learned counsel for the complainant has opposed the grant of bail and has contended that it is not a case of counter-version, the aggression on the part of accused appears from their conduct of attacking upon the house of deceased Sahoolat causing the murder of three innocent persons and injuries with intention to commit murder of eight persons including womenfolk. Learned counsel has admitted that rival party has also lodged counter F.I.R. No.55 of 2012 however mala fide on their part appears from the admitted fact that in Crime No.55 of 2012 they have suppressed the material fact of injuries sustained by womenfolks and some male members of the complainant party during the incident claimed to be counter-case. Learned counsel has further contended that admittedly incident took place inside the house of deceased Sahoolat which indicates aggression on the part of the accused who came prepared duly armed with lethal weapons to attack. Learned counsel has further argued that F.I.R. was lodged promptly nominating all the accused with specific role participated in the occurrence. The prosecution case is supported by recovery of crime weapons from the applicants and empties secured from the place of incident. Learned counsel has further contended that mere case being of counter version is no ground for bail. In support of his submissions learned counsel for the complainant has relied upon the cases reported in 1983 SCMR 278, 1992 SCMR 501, 1997 MLD 2071, 2004 PCr.LJ 127 and 2006 YLR 3053. He requested for rejection of bail application.

5. Learned State Counsel has adopted the arguments advanced by the learned counsel for the complainant.

6. I have considered the arguments and perused the record so also gone through the case-laws relied upon by the learned counsel for both the parties. The honourable apex Courts have granted bail to the accused in cases referred hereinabove by the learned counsel for the applicants considering the plea of counter-version besides other facts and circumstances of the case. Simultaneously the honourable apex Courts have declined the bail in the cases referred hereinabove by the learned counsel for the complainant after considering the plea of counter-version besides other facts and circumstances which manifest that it is not a hard and fast rule that in every case of counter version bail must be granted as rule, however, while deciding the bail application each case must be examined on its own facts and circumstances. In the instant case, no doubt Sher Muhammad has lodged F.I.R. No.55 of 2012 at Police Station Kashmore showing the date, time and place of incident to be the same as of F.I.R. No.54 of 2012. However, in the body of F.I.R. No.55 of 2012 the complainant Sher Muhammad has stated that on the day of incident they had gone to visit their agricultural land, when they reached near the house of Sahoolat Ali Jakhrani, he saw the accused persons armed with deadly weapons who attacked upon them, causing the murder of Rozudding and injuries to Meer Khan and Raman. This shows that the incident of F.I.R. No.55 of 2012 has taken place near the house of Sahoolat Ali and not inside the house as shown in Column No.4 of F.I.R. No.55 of 2012 Police Station Kashmore, the same was also lodged on 31-3-2012 after one day of incident as such the occurrence reported in F.I.R. No.55 of 2012 might have taken place in retaliation of occurrence reported in F.I.R. No.54 of 2012 hence the question of counter-version wilt be decided after examining the prosecution witnesses during trial, however at bail stage, in the above circumstances apparently the plea of counter version will not form base for grant of bail. Letting of accused Meharban nominated in F.I.R. with specific allegation of causing the murder of Ali Bagh during investigation by I.O. as argued by learned counsel for the applicants, will not damage the prosecution case against rest of the accused rather makes the Investigation to be fair without favouring either party. So far the merits of the case are concerned, applicants along with co-accused were nominated in the F.I.R. with specific role attributed to each of them wherein three persons have lost their lives and eight persons sustained injuries. The P.Ws. have also supported the contents of F.I.R. alleging specifically against each accused, the presence of witnesses at the time and place of occurrence being injured is proved without doubt as such their statements recorded by I.O. cannot be overlooked. Prosecution case is also supported by the recovery of weapons from the possession of applicants and empties secured from the place of incident. Motive behind the incident is also not denied by the applicants as such their appears reasonable ground for believing that the applicants are involved in the offence punishable with death or imprisonment for life as such no case for bail is made out.

7. These are the reasons for dismissing the bail application vide short order dated 7-1-2013.

8. Needless to mention here that the above observations are tentative in nature, the trial Court shall not be influenced while deciding the case. MWA/A-15/K Bail refuse