1970 P Cr (PLP)

2. In the attack, according to the Additional Advocate General one person by the name of' Muhammad son of Mobin died, and 8 persons were injured on the side of the prosecution party. It is said that Nazar Mohammad and Rahimdad were soon arrested. Their joint bail application came up before the S. D. M. Old Town, Karachi who rejected the 25th March 1969. However, during the later part of the same day, he passed an order releasing both the accused on the ground that they were stated to be heart patients.

3. Challenge was made to this grant of learned Sessions Judge, Karachi who rightly held dated the 13th May, 1969 that the learned Magistrate have passed an order earlier, on the same day to the effect "at present bail cannot be granted", the second order passed by him was almost contradictory, and the two order do not go with each other. He therefore. cancelled the bail of Nazar Muhammad, and as regards Rahimdad this is what he observed: "He was not apprehended on the spot and it is yet to be seen whether the matter exists to form a belief that he is involved in the crime. Although I am clear that the lower court was not right its granting bail to respondent Rahimdad but his case does not merit interference by this court. He will be deemed to be on hail in the sum of Rs. 11,000 with one surety and the P, R, Bind it) the like amount." This order has been challenged in Cr‑ \t t,4, No: 174/69; the ' refusal of the grant of bail to 14 accused in Cr. Bail Application No. 122,'69 and the cancellation of bail by the learned Sessions Judge in the third case, namely, Cr. Bail Application No 183,

169. The case was principally argued by Mr. Khalid M. Ishaque who raised practically the same contentions as were urged by Mr. Rustom Kaikobad advocate before my brother Ghulam Safdar Shah, J. in Cr. Bait Application No. 122/1969 and these were to the effect that there being admittedly two counter F.I.Rs. lodged by the parties, and both the parties having suffered large number of injuries, fault cannot be found at this stage with only one party, namely, 16 accused before me, who should not be made to remain in custody while their opponents are already on bail. As to the counter F. I. R. it may be said that a case set up therein by Nazar Muhammad was that he alone was attacked; he did not even refer to the injuries caused to any of the persons belonging to accused party. It is also noteworthy to mention that although Nazar Muhammad was arrested on the spot according to the F. I. R. but he lodged the counter‑F. I. R. on next day of the crime, on the 20th of March 1969 at 9 a. m. As many as 15 persons of the accused party are said to have been injured, but none of them did so much as to go to the police Station to lodge a report or even file private complaint up to this stage. These 15 persons are said to have received simple injuries caused by bit r; weapon, whereas the damage on the prosecution side was a‑her heavy in that the deceased Muhammad is said to have received three incised injuries, Bahram 5, Muhammad Ali 4, Sharif Dad 1, Sahab Dad 1 and Khaild Dad 4, all these being incised injuries, and the rest of the three prosecution witnesses Gul Jan one injury caused by revolver and one contusion, Mir Akbar and Mir Afzal one contusion each. If the version of the prosecution party in the F. I. R. as coming from the prosecution witnesses is to be believed, there 'can be no doubt that the accused were the aggressors. As against this, the only circumstance is the counter‑F. I. R. lodged by Nazar Muhammad in which he alone is said to have been injured, and this counter‑F. I. R. was reg1stered on the next day‑ of the crime. It cannot, therefore be said that there are two versions of the incident involving the same parties: this observation T wish to make it clear should be understood as only a tentative one, not to prejudice the case of the parties at the trial. The question then is as to the participation of the 14 accused, whose bail application is for consideration before me. An important factor in this regard is that a private complaint was lodged by the prosecution party as late as 4th April 1969, by Dilawar Khan, in which the name of four accused Shamshul Haq, Kachkole Khan, Nazir son of Khushmir and Manza Khan were not mentioned as accused persons. The benefit must, therefore, go to these four persons in the consideration of bail. Not only this but T would rather take a cautious view as to .the pieces of prosecution evidence against the other persons. ' The participation of the three persons made in the F. I. R. has been supported by serval others examined during the investigation and I would rather accept, tentatively, that these persons namely, Haji Sher Muhammad, Nazar Muhammad and Wali Muhammad were present. The participation of three more persons is fortified by the injuries borne on their persons. These accused are Shamroz Khan, Ghulam Muhammad and Rahim Dad. The prosecution therefore can legitimately argue that the presence of and participation by these 6 persons is fortified. The cases of the other remaining accused are, however, distinguishable for the prosecution evidence against them cons1sts of the testimony of certain eye‑witnesses examined during the investigation. It was not pointed out to me that the witnesses who have asserted their presence in the incident were examined on the day of the crime. The manner in which the incident occurred the participation of the other persons in the consorted attack yet to be established. I would, therefore, refuse bail to those accused who have been named in the F. I. R. and those whose participation is fortified by the injuries on their persons. Keeping this distinction in view the rest of the accused are entitled to bail. For these reasons, Cr. Bail Application No. 122/69 succeeds to the extent that except for petitioners Nos. 1, 6, 10 and 14, namely, Haji Sher Muhammad, Wali Muhammad, Shamroz Khan' and Ghulam Muhammad, the interim bail granted to others is confirmed: the interim bail of these four persons however, is cancelled. Cr. Bail Application No. 174/69 must succeed on the view taken above and the bail granted to Rahim Dad son of Fazal Dad is hereby cancelled. The third case Cr. Bail Application No. 183/69 is dismissed. The bail‑bonds furnished by the accused whose bail application has been rejected shall also stand cancelled. Order accordingly.