1981 P Cr (PLP)

The facts according to F. I. R. lodged by one Angan on 8thMay, 1978, at Police Station Deharki of District Sukkur, are that Saindad (deceased) is his relative who resides near Jhangal Malik village. It was on 24thFebruary, 1978, when Saindad (deceased) and others had declared their maternal aunt, Salim Khatoon as "Karl" with one Sahib Malik and they had caused injuries to her for which a report was lodged at Police Station Debarki in which Saindad and others were challaned and subsequently released on bail by Sessions Judge, Sukkur. Saindad had been asking for faisla from Sanwan Malik, brother of Sahib Malik who refused to give faisla to him. Saindad told them that they would take faisla from them. About 10/12 days prior to this incident Allah Wasayo had declared his brother Hussain's wife Allahwasai as "Kari". The complainant came to village Jhangal Malik for purchasing Bidis and went to hotel of Hamid Bhutto for taking tea where Asghar, Mirza, Saindad were also sitting. It was at about 11-00 a.m. when Saindad left and started going along with Retti Road in front of hotel of Sanwan Malik and they heard commotion. They got up and saw Allahwasayo Bhutto and Miro Malik armed with guns, Jan Mohammad, Imam Bux, Sanwan and Kaloo Malik, with lathis. Sanwan instigated Allahwasayo and said that "Karo" was going, who was asking for faisla from them. On this instigation, they fired at Saindad which hit him and he fell down, The complainant then grappled with Sanwan and received a laths blow on his right hand. Miro gave "Hakal". Mirza and Asghar also sustained laths blows while grappling with accused. Many people collected on commotion and intervened. The accused persons after raising slogans went away to their houses. Saindad died as a result of fire-arm injuries and was bleeding from the chest. Ibrahim Bhutto came thereafter who was given facts of the incident and he advised them to lodge report with Police. The Police after usual investigation sent up Allahwasayo and five others to stand trial under section 302/307/147/148/114/, P. P. C. and 13-D, Arms Ordinance. The application for bail was moved and the learned Sessions Judge by his order dated 10th March, 1979 allowed bail to all the accused except the applicant for whom another application was moved which was also rejected by the learned 1st Additional Sessions Judge, Sukkur, by his order 20th October, 1979. The learned counsel for the applicant has filed a certified copy of the F. I. R. No. 52 of Police Station Deharki, purporting to have been filed by one Jamaluddin for the same incident which has been slightly described in a different manner. The learned counsel for the applicant contends that this was a case of sudden fight where there was no premeditation and the applicant himself received as many as four injuries though all of them were simple. He further contends that counter-version filed by one Jamaluddin for the same incident was there and in spite of the fact that it was not believed by the investigating agency still a direct complaint was pending before the Civil Judge and F. C. M., Mirpur-Mathelo. He has filed a copy of the direct complaint in proof of the direct complaint. He also contends that there was no explanation as to how the applicant received the injuries. He also contends that in a case of admitted enmity with counter-version, the case of the applicant be considered as one which required further inquiry as contemplated by clause (2) of sec tion 497, Cr. P. C. He relies upon Ali Murad v. State (1976 P Cr. L J 520) where in the principle has been laid down "accused party on chance meeting with complainant party resorting to firing resulting in death of, two persons but petitioners only responsible for causing grievous hurt to prosecution witnesses. Fact whether all accused persons committed murder in prosecution of their common object yet to be established- petitioners in judicial lock-up for last 14 months Bail granted in circum stances". He also relies upon Abaidur Rehman v. State (1977 P Cr. L J 204) wherein the principle 'has been laid down, "petitioners, accused of murderous assault, suffering large number of injuries during` occurrence, yet fact remain unexplained by prosecution and matter requiring further enquiry as to (3) 1976 S C M R 124 (4)1975 P Cr. L J 462 which party was aggressor and what would be liability of petitioners. Bail granted, in circumstances". He also relies upon Muhammad Arshad v. State (1976 S C M R 124) wherein their Lordships of the Supreme Court have held Cross-cases-Bail-First Information Report lodged against appellants considerably delayed-Appellant's party suffering one fatal casualty but no such unfortunate consequence on opposite side-Question as to which party Was aggressor still to be determined-Despite lapse of about one year inquiry proceedings still not commenced-Order of interim bail passed in favour of appellants confirmed". He also relies upon Ata Muhammad v. State (1975 P Cr. L J 162) wherein it was held, "Cross-cases, arising out of same incident-Petitioner, accused of murder, remaining in jail while other party, accused of murderous attack enlarged on bail petitioners receiving large number of injuries including some with sharp-edged weapons on vital parts--Petitioners admitted to bail, in circumstances." The learned Asstt. A.-G. concedes to grant of bail in view of the circumstances that counter version was filed on the next day with Police and after completion of investigation a direct complaint was filed in the Court of Sessions Judge, Sukkur, which was pending disposal. After having heard the learned counsel for the applicant and State, 11 feel that none of the parties have given a true version of the incident otherwise there would have been some explanation for injuries on the person of the applicant. The facts in the counter-version are such that it would not be possible at this stage to find as to which of the parties was an aggressor in commission of offence and in what manner this offence had taken place. The enmity between the parties being admitted one and incident also a result of a heart-burning on the point of declara tion of 'Karis". Therefore without going into the merits of the case, I think there is scope for further inquiry as contemplated by clause (2) of section 497, Cr. P. C. particularly when counter-version was registered at the police station and direct complaint regarding the same incident is pending in the Court. I grant bail to the applicant who has remained in judicial lock-up for last 18 months and he shall be released an furnishing solvent surety in the sum of Rs. 20,000 and P. R. bond in the like amount to the satisfaction of the trial Court. Bail granted.