2008 PLP 47 (YLR)

ABDUR RAHMAN FARUQ PIRZADA, J.

By this order I propose to dispose of two bail applications viz. Cr.B.A.No.S-284/2007 on behalf of applicants Muhammad Ismail and Habibullah and Cr.B.A.No.S-373/2007 on behalf of Nazeer Ahmed, since both the applications pertain to same case vide crime. No.19/2006 P.S. Mahi Makol, District Kamber at Shandadkot, for offences under sections 302, 364/A, 148, 149 and 436 P.P.C. As briefly stated, the prosecution case, as per F.I.R. lodged by complainant Mst. Husna Perveen at P.S. Mahi Makol on 5-6-2000 at 4-30 p.m. is that the complainant owned land in Deh Bhoomi, on which the dispute between Shafi Muhammad Khuhawar and others and complainant party was going on since last two years, due to which the accused party had been issuing threats of murder. The same land is cultivated by his Masat Rajib. On the date of incident, the complainant along with his brother Rasheed Ahmed, son of Dost Muhammad aged about 8/9 years and brother-in-law Aziz had come to look after his lands, where his Masat Rajib was also present. At about 2-45 p.m. accused Baharo with K.K. type rifle, Ismail with rifle, Habibullah with gun, Muhammad Uris with K.K. type rifle, Nazir Ahmed with Repeater, Shafi Muhammad with rifle, Muhammad Soomar with rifle, Fayaz with gun and two unidentified persons with open faces, who would be identified if seen again, with pistols, came there. The accused persons abducted complainant's son Dost Muhammad, while saying that they would murder him. They dragged him ahead, while the complainant gave pleas of Quran Sharif; when they reached near the house of Ali Muhammad Khuhawar, the latter also met them. There was scuffle between Ali Muhammad and Rajib, during which the above-accused persons pointed their weapons with intention to commit murder and fired upon Rajib which fires missed and hit Ali Muhammad Khuhawar, who fell down on the ground while raising a cry. The complainant party rescued Dost Muhammad from accused. Rajib ran towards the village due to fear while concealing himself; he finally went to the house of Ghazi Khan Khuhawar and concealed himself there. Accused persons, while pursuing him, came in the house of Ghazi Khan where Rajib was hiding himself in a room. The accused kept the bags of palal in the room, and set it on fire, due to which Rajib was burnt down to death inside the room. Due to said fire the articles lying inside the room were also burnt. Thereafter accused persons ran away while raising slogans. Complainant while leaving the above P.Ws. to look after the dead body, went to lodge the F.I.R. at P.S. I have heard learned counsel for the applicants as well as learned counsel for the complainant and learned State Counsel. Learned counsel for the applicants contended that there was old dispute between the parties over lands. The counter F.I.R. vide No.18/2006 was lodged by applicant Habibullah for murder of Ali Muhammad at the hands of complainant party, which was prior in time to the present F.I.R. The same case has been challaned and is pending trial before Court of learned Additional Sessions Judge, Kamber. During investigation of the case 4 accused persons viz. Muhammad Ismail, Habibullah (both of them are applicants in this bail application) Muhammad Uris and Shafi Muhammad were declared as innocent and their names were placed in column No.2 of the challan; however, they were later joined in the case as per order of the learned Magistrate. Learned counsel for the applicants further contended that allegedly deceased Rajib had concealed himself in the house of one Ghazi Khan, which house was set on fire, as a result of which Rajib died and household articles were also burnt; but surprisingly no inmates of the house ever came forward to give evidence in the case. As per F.I.R. both deceased viz. Ali Muhammad from side of accused and Rajib from the side of complainant party had grappled with each other at the time of incident. It was a case of two counter versions and the benefit ought to be given to ,the accused. In the counter case Dilawar and Ayaz from complainant's side were already granted bail by this Court vide order dated 12-12-2006. On the other hand learned counsel for the complainant argued that two F.I.R's. cited above, pertained to different places of incident, and as such they could not be termed as counter versions. He further submitted that there were specific allegations against the applicants for the commission of alleged offence, as such they were not entitled to bail. Mr. Mushtaque Ahmed Kourejo, learned State Counsel conceded to the grant of bail on the ground that there were two counter versions of the case and it would bedifficult to ascertain at this stage as to whole was the aggressor. I have carefully noted the arguments of both the sides. Admittedly the counter F.I.R. vide Crime No.18/2006 was lodged by applicant Habibullah, which was prior to the present F.I.R. According to the counter F.I.R. lodged on 5-6-2006 at about 3-00 p.m. the complainant party had allegedly committed the murder of applicant Habibullah's brother Ali Muhammad by fire-arms. The incident was witnessed by applicant Habibullah and two sons of deceased Saleem Ahmed, namely Muhammad Soomar and Fayaz. In that case also, during investigation the police had released Dilawar, Ayaz and Ghulam Sarwar while placing their names in column No.2 of the challan, and only accused Bashir was sent up with charge sheet; however, later persons so released were joined as accused in the case by the learned Magistrate. It is clear from the above that this is a case of two counter versions in which one person from each side lost his life. Both cases were challaned and are pending trial. In the counter case vide Crime No.18/2006 P.S. Mahi Makol, two persons namely Dilawar and Ayaz were granted bail by this Court vide order dated 12-12-2006 on virtually identical grounds. Learned counsel for the applicants rightly placed reliance upon following cases:-- (1) Shoaib Mehmood Butt v. Iftikhar ul-Haq and others (1996 SCMR 1845), (2) Fazal Muhammad v. Ali Muhammad (1972 SCMR 391), (3). Mst. Shafiqan v. Hashim Ali and another (1972 SCMR 682), (4) Muhammad Murad v. The State (2002 PCr.LJ 1051), (5) Rehmat Ali v. Hussain and 8 others (1978 SCMR 195), (6) Barkat Ali and 3 others v. The State (1988 MLD 2735), (7) Nazro alias Nazar Muhammad v. State (2003 PCr.LJ 414) and (8) Hameed Akhtar alias Maggu v. The State (2004 YLR 823). In the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and others reported in 1996 SCMR 1845, it was held as under: "In case of counter-versions arising from the same incident, one given by complainant in F.I.R. and the other given by the opposite-party case-law is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. In such .cases normally, bail is granted on the ground of further enquiry for the reason that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of counter-versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmed (1976 SCMR 391) in cross-cases the High Court granted bail to the accused on the ground that there .was probability of counter-version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted. In the same context reference can be made to the case of Mst. Shafiqan v. Hashim Ali and others (1972 SCMR 682). It is laid down in 2002 PCr.LJ 1051 (D.B) as under:- It is an admitted position that there are cross-cases between both sides and from each side one person has lost his life. It is also an admitted position that applicant side also sustained injuries in the incident. There are two versions of the prosecution case itself goes to create doubt and makes the case against applicant to be one of further enquiry. It is yet to be the determined who is aggressor and who first caused injuries to other side. Keeping- in mind the above facts and cross-cases between the parties, we feel that the case against the applicant is also of further enquiry." In the case of 1988 MLD 2735 it was laid down that opposite side in counter case had already been allowed bail and the accused appeared to be placed in dis advantageous position as compared to the accused in counter case as such they were released on bail. The other authorities of law cited above also support the contention that in the case of two counter versions it is difficult to ascertain as to who was the aggressor, as such the benefit was given to the applicants for the purpose of bail. Learned counsel for the complainant relied upon the case of Shahadat Ali v. Mubarik Shah PLD 1986 SC 347, Nisar Muhammad Wassan v. State 1992 SCMR 501, Syed Maqbool Muhammad v. The State (2005 SCMR 635), Arif Din v. Amil Khan (2005 SCMR 1402) and Fazal Ahmed v. The State 1995 SCMR

860. In the case reported in Shahadat Ali v. Mubarik Shah PLD 1986 SC 347, the accused were found guilty of suppression of material facts as such the pre-arrest bail granted to them by High Court was cancelled by the Honourable apex Court. In the case reported in Fazal Ahmed v. The State 1995'SCMR 860, the Honourable Supreme Court did not interfere with the order of High Court as it did not suffer from any legal infirmity. In the case reported in Arif Din v. Amil Khan 2005 SCMR 1402 High Court had declined bail on the ground that the counter case was frivolous, and later the Honourable Supreme Court did not interfere with the order. Similarly in the cases reported in Syed Maqbool v. The State 2005 SCMR 635 and Nisar Muhammad Wassan 1992 SCMR 501, it was laid down that the Courts below had already refused bail, hence Honourable Supreme Court was reluctant to interferer Moreover in the later authority (2005 SCMR 635) counter F.I.R. lodged by the accused had been cancelled after investigation by the police. In my humble view, and with profound respect for the Honourable apex Court, the authorities cited by learned counsel for the complainant are distinguishable from the facts and circumstances of the present case. In the present case, one person was murdered on the side of accused for which counter F.I.R. was lodged; same case has been duly challaned and the accused 'in that case are facing trial in the competent Court. Since there are two counter versions of the case, two persons have been Murdered one on each side, and two persons have been granted bail in the counter case by this Court vide order dated 12-12-2006, I am of the view that the interest of justice would not be served by making any discrimination against the applicants, and putting them at disadvantageous position as against the opposite party. Learned State counsel has rightly conceded to the grant of bail. In view of foregoing facts and circumstances, the applicants Muhammad Ismail, Habibullah and Nazir are entitled to concession of bail; and they may be released on bail on furnishing sureties in the sum of Rs.300,000 each with P.R bond in the like amount to the satisfaction of trial Court. H.B.T./M-153/K Bail granted.