1995 P Cr (PLP)

"Ss. 497 & 498

Bail

Cross-cases, categories of.

[Bail

Cross -case]. There are three categories of cross-cases. The first would be in which out of the two parties, prima facie there is a case against one party to have initiated aggression on the other party and the latter party has acted in self-defence. The party that acted in self-defence would evidently be entitled to bail. The second would be in which two opposite-parties have by chance, come across and out of fear have assaulted each other. In that case, both parties would be entitled to bail on the assumption that they have acted in self-defence. The third would be in which two opposite-parties have indulged in the fight at the spur of moment. In that case, unless evidence is recorded, it has yet to be determined as to which party has committed aggression."

8. He further stated that the case in hand was a cross-case and the occurrence had taken place at the spur of moment and both the parties had sustained injuries. He contended that there was no doubt that the father of the complainant in F.I.R. No.881 had been killed with fire-arm injuries but at the same time, the petitioner, who had lodged F.I.R. No.881 was also grievously injured in the same transaction with fire-arm injuries. In the circumstances, according to him, the petitioner was also entitled to be released on bail. Reliance in this respect was placed on the following cases decided by His Lordship Mr. Justice Sardar Fakhar-e-Alam Khan and by His Lordship Mr. Justice Syed Ibne Ali, on 20-10-1987 and 29-5-1991, respectively: (1) Mir Oadir and others v The State Criminal Miscellaneous No.700 of 1987. (2) Aurangzeb and others v The State Criminal Miscellaneous No.285 of 1991.

9. On the other hand, Mr. Muhammad Rehman Khalil, learned counsel for respondent No-1 submitted at the Bar that the petitioner is directly charged in the promptly lodged F.I.R. (No.880) alongwith his co-accused for killing Muhammad Zaman and since there was no previous enmity between the parties, therefore, there was no ground for involving the petitioner falsely in the present case. According to him the present case had nothing to do with the case registered by the petitioner vide F.I.R. No.881. He stressed that this was not a cross-case and, therefore, the petitioner was not entitled to be released on bail.

10. Mr. Tasleem Hussain, learned counsel for the State supported the order of the learned Additional Sessions Judge-11 and adopted the same arguments as that of the learned counsel for the complainant. In addition, in support of his contention, he placed reliance on the following cases: (1) Professor Muhammad Haneef v The State 1979 S C M R 459. "Criminal Procedure Code (V of 1898)

S. 497/498

Bail-- Petitioner, according to F.I.R., came out with a .12 bore gun and fired with it resulting in injuries on forehead and face of deceased's sister

Stage of bail

Not one to sift prosecution evidence in minute details

Petitioner having injuries on his body and such fact showing his participation in occurrence

Two Courts below of view release of petitioner on bail being not justified and no legal or factual error discoverable in such approach

High Court also found to have examined distinguishing features of case of each accused and any principle of law warranting interference by Supreme Court in such matter not shown to have .been violated

Petition dismissed in circumstances:" (2) Nisar Muhammad Wassan and another v. The State 1992 S C M R 501: "(a) Criminal Procedure Code (V of 1898), S.497 (1)(2)

Penal Code (XLV of 1860), S.300, Exception 4 & 304, Part 1

Bail

Sudden fight

Accused even in case of sudden fight had to establish all the conditions laid down in S.300, Exception 4, P.P.C. to get the benefit of 5.304, Part 1, P.P.C. and when it was ultimately found to be applicable by rendering findings of absence of premeditation, cruelty, undue advantage etc. the sentence could still, in such a case, be life imprisonment

Such elements, therefore, were against the grant of bail rather than in favour thereof." (3) Shahzaman and 2 others v. The State and another P L.D 1994 SC 65: "(d) Penal Code (XLV of 1860), S. 302/34

Sentence

Common intention

Ingredients

Attack by armed persons on unarmed victims

Fact that F.I.R. had not pin pointed as to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far as conviction on the basis of charge under 5.320, P.P.C. was concerned; except on question of sentence, if Trial Court believed evidence produced by the prosecution. When armed assailants attacked unarmed victim omission to pin point in F.I.R. as to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far conviction on the basis of charge under section 302, P.P.C. is concerned, except on question of sentence, if trial Court believed evidence produced by the prosecution, section 34, P.P.C. envisages that if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone. In the present case in F.I.R. there was allegation that all three accused persons were armed with Lathis and Sarya and all of them inflicted injuries on the deceased. Everything depended on the intrinsic value of the evidence which was produced by the prosecution and it was for the trial Court to evaluate that evidence and come to the conclusion according to law."

11. After having gone through the record of the case, the arguments addressed by the learned counsel for the parties and the case-law cited at the Bar, I am of the view that the dictum laid down in case reported in P L D 1994 SC 65 is not attracted to the facts of the present case inasmuch as in that case the assailants had attacked unarmed victims. This is not the case in the case in hand. Here both the parties were allegedly armed with lethal weapons as is clear from the record. Similarly the facts in case reported in 1992 S C M R 501 were also quite different. In that case, significantly, in the second report the name of one Altaf Hussain was not mentioned at all.

12. It may be noted here that the learned counsel for the State submitted, at the Bar, that in the present case the name of respondent No.l did not appear in the F.I.R. lodged by the petitioner. I am afraid this is not the correct version. The name of respondent No.l, who had lodged F.I.R. No.880, does appear in F.I.R. No.881 lodged by the petitioner.

13. Similarly the facts of the case reported in 1979 S C M R 459 are different from the facts of the case in hand.

14. In my opinion the case in hand clearly appears to be that of second category, as defined in the case of Manawar Din v. Gul Zaman and another reported in P L D 1977 Pesh. 59 because the two opposite-parties, by chance came across each other and it was out of fear that they had assaulted each other. As such the petitioner, who had also received grievous injuries, is entitled to be released on bail on the assumption that he might have acted in self-defence.

15. Without dilating upon the merits of the case at this stage and for reasons recorded above, I am of the view that the present occurrence is a result IB of cross-case and therefore, the petitioner is entitled to be enlarged on bail. Accordingly I admit him to bail.

16. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs.1,00,000 (one lacy, with two sureties, each in the like amount, to the satisfaction of the Additional Registrar (Judicial) of this Court.

17. The Additional Registrar shall see that the sureties are respectable person, belong to the settled areas of N.-W.F.P. and are men of means having sufficient property in their names. The property documents/photo copies of the identity cards of the sureties must be obtained and appended with the bail bonds. N.H.Q./1668/P. Bail allowed.