P L D 1984 Quetta 144 (PLP)

This bail application arises out of the following facts :‑.

1. An F. I. R. was lodged on 25th October, 1983 at Tbana Baghtail, Tehsil Naseerabad, by Abdul Nabi who stated that he alongwith Khuda Bakhsh, Rub Rakha and Karim Dad was digging watercourse at about 11 a.m. when Raza Muhammad alias Razzo, Muhabbat, Niaz Muhammad Thandwani JamAi by caste and the applicants herein, who are Jageerani by caste arrived at the scene and started diverting the watercourse. They were asked by the complainant and the deceased not to do so but they were not restrained. Instead they attacked the deceased and the complainant. The complainant succeeded in escaping from the "vardat" while Khuda Bakhsh was given hatchet blows by all the six accused. Later, Khuda Bakbsh succumbed to the injuries. The report was lodged immediately after the occurrence and the accused were arrested.

2. The challan against the applicants .and the other co‑accused has already been put up to the trial Caurt but proceedings have not started as, on the question of bail, raised first before the Additional Sessions Judge, Usta Mubammad and then before this Court, the file of the case has been travelling from one Court to another.

3. Mr. Tahir Muhammad Khan, learned counsel for the applicants submitted that there was a background of enmity between the parties as one of the accused persons had been injured by the complainant party about ten months before the present incident, and a criminal case is pending to that effect. He also urged that it was a sudden fight and the complainant and the deceased were, in fact, the aggressors and a complaint has been submitted by the co‑accused Raza Muhammad against the complainant in this case, in which, among others, it has been alleged that in this quarrel one Sohbat Khan had been assaulted by the complainant‑party and he lost his left arm. Admittedly this complaint has been filed much after the present incident. Any way, irrespective of the merits or demerits of this co nplaint, and without going into the details of the previous enmity, which would naturally be pleaded in their defence by the applicants and the co‑accused ; what comes out clearly from the facts as disclosed by the F. I. R. and other documents, is that six persons (including the applicants) attacked Abdul Nabi and the deceased and that there was no other person present at that time besides these two. It would be a different matter if at trial, some different story comes out. According to the post‑mortem report, the deceased sustained ten grievous injuries caused by hatchet. Larger number of these injuries were sufficient to cause death. Moreover, the F.

1. R. does not disclose that Sohbat Khan was attacked by the deceased or that the quarrel was initiated by the complainant and the deceased. It will be noted that as against six persons, they were only two. Again, even if it is turned out to be a case of sudden quarrel, long term of punishment would fall to the applicants' share : though they may escape death penalty. Presently, the only version before me is the one disclosed by the F. J. R. and the same is sully supported by the post‑mortem report. These documents make out a strong case against the applicants and the co‑accused.

4. Mr. Tahir Muhammad Khan relied upon Barkat Ali and others v. The State (1979 P Cr. L J 117) and Manzoor Ahmed v. The State (1980 P Cr. L J 624) to support his contention that there was sufficient scope of further enquiry into the case and, therefore, the applicants deserved bail. In the first mentioned case, no specific part had been assigned to the applicant for bail in the F.

1. R. and the cross‑case filed by him was under investigation and the complainant was found to have suppressed material fact of the pendency of the cross‑case against him and the injuries allegedly suffered by the applicant at his hand. The bail was allowed in such circumstances. In the next case. the applicant for bail was attributed with the act of only grappling with the deceased ; but it was subsequent to the receipt of fatal blow by the deceased. It was thus appreciated that the question of his sharing common intention with the accused actually giving fatal blows fequired further enquiry and so, the bail was allowed. The difference between the facts of this case and the cases cited, can well be seen. He also relied upon Muhammad Shafi v. Hakam Ali and 7 others (1978 S C M R 346). In this case also, the principle of bail under section 497, Cr. P. C. on the basis of scope of further enquiry into the guilt of the accused was considered. The facts of this case were that six persons on the complainant side and two persons from the accused side received injuries in a sudden fight and it could not be accurately ascertained as to which side was aggressor ; as such, con cession of bail was allowed to the accused. All the cases cited above, arise. out of very different sets of circumstances, than the facts giving rise to the present case, in which (i) the F. I. R. names the applicants, (ii.) it attributes a definite role to them, (iii) it stands corroborated by the post‑mortem report and (iv) it attributes no role, whatsoever, as aggressor or initiator of the quarrel to the deceased or the complainant.

5. It may be possible that while defending the case, the applicants may be able to successfully set up the theory of past enmity, sudden fight and aggression by the deceased or the complainant, but at present, no such thing is conceivable on the basis of the record. It would, therefore, only be proper for the applicants to let some evidence come on record of the trial Court and then make a move for bail, if circumstances so justified. This application has no merits and is hereby dismissed. M. z. M. Application dismissed.