2004 PLP 2020 (YLR)

This incident relates to Crime No.202 of 2002 of Police Station Khairpur Nathan Shah in which Rasool Bux had lodged report on 22‑12‑2002 regarding murder of Muhammad Ismail and Niaz and injuries to Manthar. Counter F.I.R. (203 of 2002) of the same incident was lodged on the same day after 45 minutes by Ali Sher in respect of murder of Muharram and injuries to Ashfaq (the applicant). The allegations in the first mentioned F.I.R. are that there was previous dispute between the parties and on the day of the incident Abdul Sattar, Muharram, Muhammad Urus, Ashfaq and an unidentified person attacked the complainant party, when they were present in their lands. Abdul Sattar fired at Niaz Hussain, Ashfaq fired at Manthar and Niaz Hussain while Muhammad Urus fired at Muhammad Ismail. Niaz Hussain survived but the other two succumbed to injuries. In the counter‑case Niaz Hussain fired at Muharram. Fire‑arm injuries were received by Ashfaq also but Muharram succumbed to the injuries. I have heard Mr. Abdul Rasool Abbasi, learned counsel for applicant and Mr. Muhammad Ismail Bhutto, learned State Counsel, the latter concedes to grant of bail. The main contention raised on behalf of the applicant is that accused Manthar in counter‑case has been granted bail by this Court by order dated 19‑5‑2003 in Criminal Bail Application No.241 of 2003, inter alia on the ground that this was a free fight and there was a counter‑case and that the facts of the case would require further enquiry as to who was the aggressor. Reliance was placed on Muhammad Aslam v. State 1997 SCMR 251, Mst. Shafiqan v. Hashim Ali 1972 SCMR 682, M. Ashrafuddin v. State 1997 PCr.LJ 530 and Shah Muhammad v. State PLJ 1984 Cr.C Lahore

17. It was therefore argued that the case of the applicant, being on other side, is identical and he also deserves concession of bail under the rule of consistency. Additionally he submitted that Muhammad Urus against whom the direct fires are alleged has been let off by the police during investigation. The applicant is in jail for a period of more than one year and three months. Mr. Muhammad Ismail Bhutto learned State Counsel did not controvert the above position. On a careful examination of the record and on tentative assessment, I am inclined to agree with the learned counsel that the person who‑was alleged with fatal shot and had also received injuries on the other side has been granted bail while the applicant stands on same footing, his case would be governed by rule of consistency. Accordingly, the application is allowed. Applicant be released on bail subject to furnishing surety in the sum of Rs.300,000 and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./A‑53/K Bail granted.