1995 P Cr (PLP)

ABDUL RAHIM KAZI, J.

This bail application has been moved on behalf of applicants, who alongwith other co-accused have been sent up to stand trial in a case registered with Rato Dero Police Station as Crime No.142/94 under section 302/324/149/148, P.P.C. Mainly the allegations as made out in the F.I.R. are that both the parties who belonged to Lolaee and Joyas tribes have enmity with each other on account of previous murders of the parties and they also go about duly armed. It is contended that on the day of incident when the complainant party was in the Town of Rato Dero, the accused party had seen them and gone away and when in the evening time the complainant party was returning to their village in a Datsun Pick-up, sitting in the back portion and when they reached near the village of Sajjan Joyo the Datsun had stopped to drop some of the passengers and at that time a car of yellow colour following the Datsum reached there and five of the accused persons including the present applicants got down from the said car and saying that they will take revenge of the murder of their relatives Sikandar and Motan, they fired at the passengers sitting in the Datsun. In firing, accused Nazeer, fired with his rifle while accused Duro fired with Klashnikov, the present applicant Souzal is said to have fired from his rifle hitting the complainant on the backside of his neck while applicant Ali Bux fired in the air with his gun: As a result of such firing four persons sitting in the Datsun were killed. Of these four persons deceased Manzoor Ali, belongs to Joyo tribe while the other three, namely, Ougan Ali, Ghulam Shabbir Brohi, Allah Wadyaho were also killed. The F.I.R. was promptly registered within one hour of the incident and the police after usual investigation arrested the accused and. sent up the case for trial. The bail application on behalf of the present applicants was moved before the trial Court, which was rejected and, therefore, this bail application. We have heard Mr. Muhammad Afzal Soomro, the learned counsel for applicants and Mr. Abdul Latif Ansari, learned' Assistant Advocate -General. The learned counsel for applicants has urged that this is a case of counter-version as the present accused party had also lodged a F.I.R. with the same police station under section 302/324/34, P.P.C. being F.I.R. No.143/94. From this the learned counsel has contended that in these circumstances it is yet to be ascertained as to who was the aggressor. He; has further submitted that in this case each person would be responsible for his respective act; and that the present applicant Souzal is said to have fired at the complainant causing an injury which is not the fatal one while applicant Ali Bux is alleged to have fired in the air without causing any injury to anyone. The learned counsel has then submitted that the police has not recovered the Datsun nor any inspection note of the vehicle is prepared. Lastly the learned counsel has argued that the complainant party has not come with clean' hands as they have suppressed certain facts in the F.I.R. The learned Assistant Advocate-General has vehemently opposed the bail application. We have given anxious consideration to the submissions made by the learned counsel for applicants. As regards the first contention that there are counter-versions and, therefore, counter-case. It may be observed that it is not in every case of a counter-case that the parties become entitle to bail but every case has to be examined on its own merits and attending circumstances. 1n the present case the counter-case (F.I.R. No.143/94) was registered 27 hours after the incident and no plausible explanation for such delay has been given. It is obvious that the counter-case is registered only when the present accused party acquired knowledge of registration of case against them and the movement on the part of the Investigating Agency. The facts which appear in the F.I.R. show that of course there is enmity between the parties but enmity is a double-edged sword which can cut both ways. The facts of the case as given in the F.I.R. show that it was the accused party who came in a car after the Datsun Pick-up wherein the complainant party was travelling and reached them near Joyo Village and assaulted them. In order to cause murder of a person belonging to the complainant party they also killed three other persons of different casts including one of their own tribe. Such heinous act cannot be condoned where innocent people of other cast were also killed by the accused in order to satiate their thirst of revenge. Even the Mashirnama of Wardat shows that the dead body was lying at the stop near the Village of Joyo. In these circumstances, the mere fact of filing of a counter-case would not be of any material help to the accused in the present case. As discussed above, the present. applicants had also come in the said yellow colour car alongwith either accused and they had also fired. Of course the applicant Souzal fired at the complainant causing injuries on his neck, which act by itself would amount to attempt to murder if not murder. Even the offence for attempting to cause murder is non-bailable. As regards co-accused Ali Bux, though he fired in the air but being member of a party, who had come to cause death and with such intention fired at the persons sitting in the Datsun would show that he had also similar intention; and that his firing in the air could be attributed to his act of causing awe in the passengers sitting in the Datsun so that they may not retaliate. Thus, prima facie section 149, P.P.C. would be attracted to the present case. As regards the fact that police had not recovered the Datsun Pick-up in which the complainant party was travelling or that no inspection note was prepared, the; same point can be urged at the time of trial and it is yet to be ascertained as to what would be the consequential effect in the case. The other point urged by the learned counsel for applicants is that the complainant party has not come with clean hands inasmuch as they have suppressed certain facts in the F.I.R. as they have not mentioned that the other passengers were also killed in the firing. A plain reading of the F.I.R. would contradict the above submissions of the learned counsel. From the above discussion, we are of the view that the material on record prima facie connects the accused with the commission of the offence alleged against them; and that the applicants are not entitled to grant .of bail: Accordingly, the bail application is dismissed. The above observations are tentative in nature and will not be considered by the trial Court. N.H.Q./S-1128/K Bail refused.