1995 PLP 1220 (MLD)

5. Feeling aggrieved by the abovementioned order of the Magistrate, the petitioners moved the Court of the Sessions Judge, Swat wherein they prayed that they be granted bail. The learned Additional Sessions Judge, Swat after hearing the counsel for the parties and perusing the record came to the following conclusion:‑‑‑ "

4. The accused/petitioners are directly charged for committing an offence under section 302/37, P.P.C. in a busy Bazar. I do not see any reason for concession of bail. The application is, therefore, rejected."

6. The petitioners have challenged the vires and the legality of the order of the Additional Sessions Judge, Swat which has been reproduced above and have knocked at the doors of this Court for the redress of their grievance.

7. I have heard the learned counsel for the parties ag mentioned in para. No. 1 above, and have also gone through the record of the case carefully, as well as the case-law cited at the bar.

8. The learned counsel for the petitioners made two‑fold submission:‑‑‑ (a) Firstly, that there is yet another version of the occurrence which has been recorded vide F.I.R. No. 82 dated 10‑3‑1994, that being a cross‑case (registered vide F.I.R. No. 82 dated 10‑3‑1994, it is yet to be established as to which of the parties, i.e., the complainant or the accused‑petitioners, was the aggressor and, as such, the case of the petitioners was that of further inquiry, within the meaning of section 497(2), Cr.P.C., and that they were entitled to be released on bail. (b) Secondly, that petitioner No. 1, i.e., Yar Said, was a minor and, therefore, his case falls within the ambit of first proviso to subsection (1) of section 497, Cr.P.C. and, accordingly, he was entitled to be released on bail.

9. On the other hand, the learned Assistant Advocate‑General Mr. Muhammad Khurshid Khan Afridi for State submitted that there was no cross?-case, in the case in hand, inasmuch as the perusal of the alleged cross‑case registered vide F.I.R. No. 82, dated 10‑3‑1994 would show that the complainant or the deceased had not been named/charged or assigned any role by the complainant in that case. Similarly, that case was not registered by the petitioners themselves or by any body else on their behalf or at their instance.

10. He further stated that there were three categories of cross‑cases and in this respect placed reliance on a case reported in PLD 1993 Pesh. 175 Muhammad Akram v. The State. (a) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S.497/498‑‑‑Bail‑‑‑Cross cases‑‑‑Categories of cross‑cases with feasibility of bail discussed. Of the three categories of cross‑cases first would be in which out of the two parties, prima facie there is case against one party to have initiated aggression on the other party and the latter party had acted in self‑defence. The party that acted in self‑defence would evidently be entitled to bail. In the second category would fall the case where the two rival parties have, by chance, come across and out of fear assaulted each other. On the other hand, if the two rival groups have indulged in the fight at the spur of the moment, the case would also fall in the second category. The third category of cases is that that of "free fight" in which both the parties enter into and engage in, of their free volition thus excluding the possibility of pleading self‑defence later. Most of the cases fall under the category of "free fight" which perhaps by inadvertence are taken to be covered by the first‑mentioned two categories. Even in the first‑mentioned two categories the plea of bail raised by both the parties is entertained out of abundant caution. In the context of the present law and order situation and emergence of Kalashnikov culture, the plea of bail raised in cross‑cases is not to be taken lightly. If the case prima facie falls within the second category or in the 3rd category of "free fight" then each person even at the stage of bail would be held responsible for his individual acts.

11. According to him the case registered vide F.I.R. No. 82 does not fall under any of the categories mentioned above and therefore, that case registered vide F.I.R. No. 82, wherein even the parties are different, had to be discarded by this Court.

12. Beside this the learned Assistant Advocate‑General further submitted that the mere fact that one of the petitioners i.e. Yar Said, is a minor would not by itself give a right to. the petitioner to be released on bail. In this respect he placed reliance on the following two cases:‑‑‑ (i)1977 P Cr. L J 421 Abbas and others v. The State: ‑‑‑Criminal Procedure Code (V of 1898), S.497/498‑‑‑Bail in murder case‑‑‑Refusal of‑‑‑Case involving offence under section 148/302/ 149‑‑‑Age of accused less than 16 years and his studentship‑‑‑Do not render accused entitled to bail where there are reasonable grounds to believe that prima facie he is guilty of offence punishable with death F or life imprisonment‑‑‑Grant of bail on consideration of age, held, is discretion of Court under section 497‑‑‑Bail refused. (ii) 1978 SCMR 235 Shahbaz Tufail v. The State:

5. As to the age of petitioner, the finding of the learned Judge is that according to Radiologist, who had examined the petitioner for his age, the petitioner was about 18 years old. The observation in the impugned order is that when the petitioner was sent to Radiologist for examination his learned counsel had agreed. But when the report of the Radiologist was received, the learned counsel was not satisfied and consequently placed on the record of the case a matriculation certificate of petitioner and a copy of his birth certificate to show that when he allegedly committed the crime he was a little over 16 years of age. The finding recorded by the learned Single Judge is that the two documents produced by the learned counsel did not tally with each other. Furthermore, under the proviso to subsection (2) of section 497, Cr.P.C. it was not open to a person to claim bail as of right just because he was of tender age. Upon the facts of the case no exception can also be taken to this conclusion of the learned Single Judge."

13. He further stated that the contention of the learned counsel for the petitioners was wrong and incorrect that the petitioner was, in fact, a minor. In this respect he drew my attention to the certificate, appended with the petition by the learned counsel for the petitioners. This certificate is in fact a photo copy of the alleged certificate issued by the Headmaster; Government High School, Ordigram, District Swat on 16‑4‑1994. According to this certificate the date of birth of Yar Said (accused‑petitioner No. 3) is recorded as 5‑6‑1977. If this photo copy, the original of which has not been produced before me, is taken to be correct, even then the age of the petitioner comes to about 18 years and his case, therefore, would not fall under the first proviso to subsection (1) of section 497, Cr.P.C.

14. Qazi Muhammad Anwar, learned counsel for the complainant also addressed the Court and submitted at the Bar that the petitioners have been directly charged for having killed Muhammad Khan, a relation of the complainant, and have also seriously wounded/injured the complainant who was removed to the hospital where he lodged the report at 22‑05 hours with the Incharge Head Constable, Casualty Ward, Hospital who reduced his report into the form of a Murasila. The same was sent to the police station where F.I.R. No. 81 was duly registered against the petitioners. He further submitted that there was no consultation/deliberation before lodging the report. According to him, keeping in view the fact that the complainant was injured himself and his relative had been killed, the F.I.R. was promptly lodged. He further stated that the occurrence took place in broad daylight, in a busy Bazar, and was witnessed by independent and respectable witnesses, including Dr. Sher Ali Khan, whose statements were also recorded, not only under section 161, Cr. P. C. but, also under section 164, Cr.P.C., that besides two other independent witnesses (Shalyar and Afzal Khan) had seen the petitioners decamping from the place immediately after the occurrence and in this respect I their statements were also recorded under section 164, Cr.P.C. He further stated that in the circumstances of this case, the petitioners were not entitled to be extended with the concession of bail as prayed for by them.

15. Without dilating upon the merits of the case at this stage and after having gone through the record of the case as well as the case‑law produced before me, I am of the considered view that reasonable grounds do exist for believing that, prima facie, the petitioners are connected with the commission of the offences with which they have been charged. As such they are not entitled to be released on bail. Needless to mention here that petitioner No. 3, Yar Said, is not a minor and is not entitled to be released on bail on this score too.

16. This bail petition does not merit consideration and is accordingly rejected. N.H.Q./1739/P??????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.