P L D 1993 Peshawar 175 (PLP)

Qazi Abdul Jalil for the State. Date of hearing: 5th May, 1993. Muhammad Akram, petitioner seeks bail in the case registered against him and four others under section 302/324/148 read with section 149, P.P.C. at Police Station, Mirpur, District Abbottabad, vide F.I.R. No. 337 dated 12‑11‑1992.

2. Facts giving rise to this petition are that a report was lodged by Muhammad Akram, petitioner herein, in injured condition, at the spot in village More Kalan, Tehsil and District, Abbottabad, at 12‑40 hours on 12‑11‑1992 wherein he had stated that at about 10‑00 hours he was cutting fuel‑wood from his land which was resisted by his brother Muhammad Ashraf. The petitioner and his brother Muhammad Ashraf went to their houses. Abdul Malik, nephew of the petitioner, came and stopped both his uncles from making hue and cry. In the meantime, it is alleged, Muhammad Ashraf armed with an axe and dagger, his sons Arshad, Arif, and Banaras duly armed with shotguns of .12 bore while Tariq holding a pistol in his hand emerged at the outer door of the petitioner's house and launched a concerted attack. Muhammad Ashraf gave a dagger blow to the petitioner which landed on his head while Arshad, Tariq, Arif and Banaras opened fire with their respective weapons and entered the house where Mst. ‑Nazakat Bibi, the petitioner's daughter was hit who later on succumbed to the injuries. The petitioner in order to save his life was running towards the police station when Muhammad Aslam Khan Additional S.H.O. came across him on the way and recorded the Murasila on the basis of which F.I.R. No. 336 was drawn up the same day at 13‑30 hours in Police Station, Mirpur , District Abbottabad.

3. At 13‑00 hours on 12‑11‑1992 Arshad son of Muhammad Ashraf lodged another report stating therein that at about 10‑00 hours his uncle Muhammad Akram, petitioner herein, was cutting fuel‑wood from their land. His father Muhammad Ashraf went to the spot and stopped the petitioner and his son Muhammad Farooq from cutting the tree. Both the petitioner and his son Muhammad Farooq gave beating to Muhammad Ashraf with fists and tile handle of the axe. Muhammad Ashraf ran for life towards his house. On hearing4he commotion, Arshad also reached his house. His father Muhammad Ashraf was chased by Muhammad Akram petitioner who was holding in his hands an axe and dagger accompanied by Haroon and Sharafat duly armed with .12 bore shortguns while Farooq, the petitioner's son armed with a pistol emerged in front of the house of the first informant. The petitioner dealt the dagger blows to Muhammad Ashraf followed by axe blows felling him to the ground. Sharafat, Haroon, Farooq and Abdul Malik duly armed with their respective weapons entered the house of Arshad complainant and opened fire as a result of which Faridoon, Banaras and Aurangzeb his relative had been killed. Sharafat is also alleged to have fired at Arshad injuring his right hand. This report was also despatched, to Police Station, Mirpur, where the case was registered on the same day at 13‑55 hours vide F.I.R. No. 337.

4. The learned Additional Sessions Judge, Abbottabad, had declined the concession of bail to the petitioner on the following grounds:‑‑ "In the instant case five persons have been charged of whom Abdul Malik has died, Akram (is) arrested while others are still at large. The record further deposed that role to each accused has satisfactorily been attributed in the F.I.R. Medical report and recovery effected from the spot as well from accused also support the version of the F.I.R., which disentitles the accused‑petitioner to grant of bail in the circumstances. Bail petition rejected."

5. Mr. Khan Afsar Khan, learned counsel for the petitioner, contends that the case was one involving counter‑versions; that the likelihood of the petitioner, having acted in self‑defence cannot be altogether excluded and, therefore, like his opponents charged in F.1.R. No. 336 he was also entitled to bail. In support of these pleas reliance has been placed on: (1) M. Iqbal v. Muhammad Yaqoob etc. 1983 SCMR 359 and (2) Ali Akbar Shah v. Banaras etc., 1990 SCMR 1097. The learned counsel also invited my attention to the order dated 15‑1‑1993 of the learned Additional Sessions Judge in the cross case (Appl. No. 421/4‑A) wherein on the strength of the following observations the concession of bail was sought for the petitioner:‑‑ "I have carefully gone through the record in the light of the case‑law referred to by the learned counsel for the parties and have also gone through the record of the cross case F.I.R. No. 337 which was also summoned on the request of the learned counsel for the petitioners and I am of the considered view that both the parties concealed true facts as both have not shown as to who caused the murders and injuries in the case of other party. However, one fact is clear that the parties are closely related to each other and the occurrence took place on a petty dispute of cutting of log of wood. The two main parties are real brothers in which the dispute of cutting of wood had taken place. It is not clear from the record placed before the Court in both the cases to hold that the accused‑petitioners are the aggressors specially when according to their F.I.R. they were cutting the wood in their land. Accordingly, I admit the petitioners to bail on furnishing bail bonds in the sum of Rs. 1,00,000 with two local and reliable sureties each in the like amount to the .satisfaction of the Illaqa/Duty Magistrate." According to the learned counsel the learned Additional Sessions Judge had applied two different criteria for granting concession of bail to rivals of the petitioner and refusing that concession to the petitioner.

6. Qazi Abdul Jalil, learned counsel for the State, on the contrary, has submitted that cross F.I.Rs. or cross cases between the two rival factions could not always be good ground for grant of bail where specific roles had been attributed to the accused in both the cross‑cases. Reference was made to: (1) Zaheer Din and 2 others v. The State PLD 1990 SC 959 and (2) Tahir Hassan Hashmi v. The State 1990 SCMR 326. 7. 1 do not feel inclined to extend to the petitioner the benefit of cross case on the authorities of Muhammad Iqbal's case (1983 SCMR 359) and Ali Akbar Shah's case 1990 SCMR 1097. The facts of both the precedent cases are not similar to the one under consideration. Each criminal case has its own peculiarities and must be decided on its own facts.

8. The learned Addl. Sessions Judge has rightly taken notice of three categories of cross‑cases in Appl. No. 421/4A arising out of case F.I.R. No. 337 but could not come to any logical conclusion as to in which of the categories the cross‑cases herein would prima facie fall. Of the three categories, first i 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 had acted in self‑defence. The party that acted in self‑defence would evidently be entitled to bail. In the second category if the two rival parties have, by chance, come across and out of fear assaulted each other. On the other hand, if the two rival groups have indulged in the fight at the spur of the moment, the case A would also fall in the second category. To my mind, the third category of cases is that that of `free fight' "in which both the parties enter into and engage in, of their free volition thus excluding the possibility of pleading self‑defence later". The best exposition of this category of cross‑cases is to be found in Syed Ali Bepari v. Nibaran Mollah and others P L D 1962 S C 502 wherein Fazle Akbar, J., as his Lordship then was, speaking for the illustrious I Bench observed as under:‑‑ "Here we may observe that in a case of this type (free fight) the parties do not come out with true story. It is a normal incident of an `adversary proceeding' to minimise one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances ... .. .. A legitimate conclusion, therefore, could be drawn that on the morning of 15th November both parties went to enforce their right or supposed right in the disputed land and for this purpose they armed themselves in full expectation of an armed conflict. Hence judging from their acts and conduct we think it can safely be said that each party anticipated resistance from the other and were, therefore, determined to have a trial of strength. In such circumstances, it will be impossible to say that accused party were acting in the exercise of any private defence of person or property.' From the state of relations it is also clear that both the parties were prepared to fight and that a very trivial incident was sufficient to bring them into‑conflict .... Hence in the circumstances such as those of the present case no question of right of private defence would arise and, common object stated in the charge having failed each person would be held responsible for his individual case." While quoting the excerpt from the monumental judgment of the Supreme Court I am conscious that the theory of `free fight' was prounded in an appeal against acquittal recorded by the erthwhile High Court of Dacca. What I intended to highlight from the case of Sayed Ali Bepari cited above was that most of the cases fall under the category of `free fight' which perhaps by inadvertence are taken to be covered by the. first‑mentioned two categories. Even in the first mentioned two categories the plea of bail raised by both the parties is entertained out of abundant caution. In the context of the present law B and order situation and emergence of Kalashinkov culture, the plea of bail raised in cross‑cases is not to be taken lightly. If the case prima facie falls within the second category or in the 3rd category of `free fight' then each person even at the stage of bail would be held responsible for his. individual acts. I am also not unmindful of the submission of the learned counsel for the petitioner that the opposite‑party has in Appl. No. 421/4A been allowed bail and thus the petitioner has been illegally made the victim of discrimination. I have, however, decided to refrain from making any observations on that case lest it should adversely affect the merits thereof.

9. It is indeed settled law that bail can be allowed in a case allegedly not falling within the prohibition contained in section 497(1), Cr. P.C. but if under section 49''(2) there‑‑if "it appears to the such officer or Court that there are no reasonable grounds for believing that the accused has committed a non bailable offence but there are sufficient grounds for further inquiry into his guilt the accused shall be released on bail". Without this finding bail cannot be allowed under subsection (2) by the' mere mention therein that there are sufficient grounds for further inquiry including that of there being cross‑cases. Reference in this context may be made to the prcedent case of: `Mst. Bashiran Bibi v. Nasar Ahmad Khan and others (PLD 1990 SC 83). Again in a recent case of Nasir Muhammad Wassan and another v. The State (1992 SCMR 501) reference was made to the case of Iqbal Hussain v. Abdul Sattar and another PLD 1990 SC 758 wherein the following law was laid down: "In these circumstances merely because there are cross F.I.Rs. or cross‑cases against each other cannot be a ground for grant of bail. Besides this both the Courts below have exercised their discretion and refused to grant bail. The Supreme Court is reluctant to interfere with such discretion, unless it is exercised contrary to the principles laid down by this Court, is in disregard of the principles governing the administration of criminal justice and/or is perverse. Reference can also be made to Hafiz Khuda Bux v. The State PLD 1988 SC 413 Arbab Ali v. Khamosi and others 1985 SCMR 195, Shahadat Ali v. Mubarak Shah and another PLD 1986 SC 347 and Mst. Bashiran Bibi v. Nisar Ahmed Khan PLD 1990 SC

83. We, therefore, dismiss the petition."

10. Now coming to the facts of the present case, suffice it to say that it does not fall within the category of any one of those cross‑cases in which one party or both of them can prima facie claim the concession of bail as of right. In this context, I am fortified by the latest authority of the Supreme Court reported as Zaheer Din etc. cited above in which almost on the same ground the prayer for bail of Zaheer Din and another was rejected.

11. In so far as the petitioner's prayer for bail is concerned, he has been assigned a specific rote at least qua Muhammad Ashraf deceased and the medical evidence prima facie supports the allegation of the prosecution to this extent. He would, therefore, be liable for the injuries which have been attributed to him and which had proved fatal to Muhammad Ashraf deceased. The petitioner is, therefore, not entitled to bail. Any observations in this, order should be taken to be in the nature of tentative assessment of the case and not determinative of the facts to be proved at the trial. This Cr. Misc. bail application is accordingly dismissed. N.H.Q./1478/P Bail refused.