P L D 1997 Karachi 130 (PLP)

By common order, I propose to dispose of Criminal Miscellaneous Application No.174/96 and Criminal Bail Application No.176/96 seeking cancellation of bail of respondents/accused Jatoi, Shahan and Adit and for grant of bail of applicant Abdul Ghafoor in Crime No.110/95, registered at P.S. Buxapur for offences under section 302,324, 114, 147, 148, 149 P.P.C. and 13.1) Arms Ordinance. The relevant facts of the abovementioned applications are that on' 26-12-1995 at 6.30 a.. complainant Nazeer Ahmed, his father Banhoon and P.Ws. Rehmatullah were in the land, where Banhoon was ploughing the same at 6-30 a.m. when at above time, accused Bajhi, Sahib, Meeru Samejo and applicant Abdul Ghafoor armed with guns, respondents Shahan and Jatoi with Lathis and Adit empty-handed came there. Respondent Adit abused the complainant party saying that he will not allow them to plough the land and instigated others not to spare where-upon co-accused Bajhi and Sahib fired from their guns at Baboon, who fell down whereas applicant Abdul Ghafoor fired upon Rehmatullah while co-accused at the instigation of Adit fired at P. W . Yakoob, who fell down and others caused Lathi blows to complainant's uncle Rehmatullah and also caused him Lathi and kicks blows. On the fire report Hussain Bux and others came running who entreated them in the name . of 'Allah' and thereafter abovementioned accused decamped, while firing in the air. Complainant and P.W. Hussain Bux found Banhoon dead having sustained injuries at his stomach and hands, Rehmatullah and Yakoob having fire-arm injuries at their hands and legs. After leaving P.W. Hussain Bux over them, complainant went to lodge F.I.R. that above accused fired at them in order to occupy the land purchased by the complainant. On the other hand a counter case of the present case was lodged by applicant Abdul Ghafoor on the same date at 11-50 a.m., initially as non cognizable entry but later on incorporated in 154, Cr.P.C. book on 17-i-1996 as Crime No.3 of 1996 of P.S. Buxapur inter alia alleging therein that his uncle possesses the land near Godi Bunglow and about 6 months prior Bajhi Bhutto had asked the complainant's maternal uncle Adit to transfer his land to him as he has taken the price for same to which he denied said transaction and on that account they had exchanged harsh words and the matter was decided in " Faisla' by Mithal Khan Jakhrani in which it was decided that Abdul Kareent Bhutto would take oath on Holy Qur'an but he avoided to do so. On the day of incident at 6-30 a.m. complainant heard cries of his uncle Adit from the land, he, his cousins Shahan and Abdul Sattar went running there and saw that Banhoon was ploughing the land of Adit while Rehmatullah and Yakoob were causing injuries to him by Lathis, kicks and fist blows. On their intervention, the above accused also caused them kicks and Lathi blows and on their cries Bajhi and other neighbourers came running and rescued them in the name of Holy Qur'an. Complainant has further mentioned in the F.I.R. that in self-defence they also caused injuries to the accused. While going to lodge F.I.R., other accused namely Ghulam Nabi, Ghulam Kadir, Sahi and Rustam abused them and caused them kicks and fist blows and one Hussain Bux and Mir also reached at near High School Badani and abused them not to lodge the F.I.R. Mr. Muhammad Daud Baluch learned counsel for complainant seeking cancellation of bail granted to respondents/accused Jatoi, Shahan and Adit and opposing the grant of bail to applicant Abdul Ghafoor, mainly contends that they do not deserve concession of bail as they are not only vicariously liable to commit murder of deceased Banhoon but have caused injuries to P.Ws. Rehmatullah, Yakoob and complainant Nazeer Ahmed. So much so that applicant Abdul Ghafoor is alleged to have fired ,at P.W. Rehmatullah who sustained injuries at the hand and legs whereas respondents/accused Shahan and Jatoi cased blows with Lathis and kicks to complainant, deceased Banhoon and P. W. Rehmatullah. He next argues that one person has died on their side and 3 persons are injured, therefore, respondents/accused and applicant Abdul Ghafoor do not deserve to the concession of bail. He relies upon the case-law reported in 1995 PCr.LJ 1358._ . On the other hand Mr. Muhammad Murad Chacher appearing respondents Jatoi, Shahan and Adit and applicant Abdul Ghafoor, vehemently states that the respondents/accused have been rightly granted bail by the trial Court and submits that the case of, applicant Abdul Ghafoor is also of further enquiry. He submits that a counter version of the present case is lodged by applicant Abdul Ghafoor, according to which 3 persons of their side are seriously injured and applicant AbduYGhafoor has received 6 injuries. Two of them are at the parital region of skull and injury No.6 is grievous, whereas injured Abdul Sattar received 7 injuries. Injury No.l at skull and others are on r the different parts of the body like chest, shoulder etc. and third Muhammad :_' Shahan also sustained 9 injuries. Out of which 3 injuries at parital and occipital .region of skull and remaining at the different parts of the body. Learned counsel further argues that complainant has suppressed the fact of counter case in his F.I.R. and has not come with clean hands whereas applicant Abdul Ghafoor has mentioned about causing injuries to other side in self-defence in the F.I.R. lodged by him. Learned counsel submits that incident admittedly took place in the disputed land being claimed by both the parties, therefore, the point of aggression is yet to be determined at the trial to find out as to who out of the two initiated the attack. The incident in the manner shows a free and sudden fight resulting in sustaining of injuries by both the parties, therefore, the case requires further enquiry. He relies on the case-law ,reported in 1988 PCr.LJ 2317, 1990 SCMR page 1097 and 1996 SCMR page

984. Mr. Nidamuddin Brohi, Advocate appearing for State adopts the arguments advanced by Mr. Muhammad Daud Baluch learned counsel for '1 complainant and supponzi the cancellation of bail acid opposes to the grant of bail to applicant Abdul Ghafoor. It is a fact that the counter case of the case in hand was registered initially at the report of applicant Abdul Ghafoor in Roznamcha, later 'on incorporated in 154, Cr.P.C. book as Crime No.3 of 1996 about the same incident. A perusal of F.I.Rs. of both the cases reveals that occurrence took place in-the land being claimed by both the parties and a fight took place while deceased Banhoon was ploughing the land resulting in his death and sustaining of injuries by complainant Nazeer Ahmed, P.Ws. Rehmatullah and Muhammad Yakoob whereas from applicant's side applicant Abdul Ghafoor, Abdul Sattar and muhanunad Snannan. lie incident seems to be a sudden flareup, finding the land being ploughed which erupted the parties to fight. No doubt one person namely Banhoon has lost life and 3 others are injured from the side of A complainant party similarly the fact of sustaining serious on skull and other parts of the body by the applicant's side cannot be ignored specially in view of the lodging of the counter case. In these circumstances, the point of aggression is to be determined at the trial to find out as to who initiated the attack first, ' The case of Sonozal and others v. The State reported in 1995 PCr.LJ 1358 referred by Mr. Muhammad Daud Baluch learned counsel for the complainant, has no bearing with the facts of the present case as in this case counter case was registered about 27 hours after the incident and no plausible explanation for such delay was given and the accused party was the first to initiate the attack whereas the facts of the present case are quite distinguishable. The case-law referred by Mr. Muhammad Murad Chacher, Advocate for respondents and applicant, is quite identical with the present case and in the case of Bashir v. The State 1988 PCr.LJ 2317, this Court granted bail to the accused on the basis of counter case between them and both the parties injuries and suppressing injuries of others and point of aggression was yet to be determined. In the case of Ali Akber Shah v. Banaras and others 1990 SCMP. 1097 Honourable Supreme Court refused to grant leave to appeal against the order of learned Single Judge of Peshawar High Court granting bail to accused Banaras as he and his father had received number of injuries including two incised wounds on their skull. Said injuries had not been explained in F.I.R. and further finding the case of her enquiry to determine as to who are the aggressor. In the case of Razi Khan v. Muhammad Mushtayue and others 1996 SCMR 984, it has been held by, the Honourable Supreme Court that the consideration for grant of bail and cancellation thereof are altogether different and that once bail is granted to an accused, then the strong and exceptional ground would be required no interference, In the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34(g) Honourable Supreme Court has held that.

"Offence allegedly committed by accused punishable with death; imprisonment for life or imprisonment for ten years. Benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by accused in the occurrence, his presence on the spot and all the questions of his vicarious liability, would go to him at bail stage. Wherever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail, for bail can neither be withheld nor cancelled as punishment. There is no legal compulsion to cancel the bail of the accused who allegedly have committed crime punishable with death, imprisonment for life or imprisonment for ten years. Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is a wide difference between the jail life and a free life. So, benefit of reasonable doubt about occurrence itself, identity of " the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would go to him even at bail stage. There is a tendency to involve innocent persons with the guilty. Once an innocent person is falsely"` involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial. When a person is detained in the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not .be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment." Looking to the above circumstances, there seems to be no justification to interfere with the order passed by learned trial Court granting bail to respondents Jatoi, Shahan and Adit and the same is maintained and Criminal Miscellaneous Application No.174/96 is dismissed and I allow the Criminal Bail Application No.176/96 and direct that applicant Abdul Ghafoor be released -on bail if he furnishes a solvent surety in the sum of Rs.100,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. N.H.Q./N-27/K Order accordingly.