1. Perused the office note.
2. This order will dispose of the bail application filed by the applicants involved in Crime No,87 of 2000 of Police Station Bakrani.
The facts giving rise to the present application as disclosed in the F.I.R. are as under:-- "Complaint is that we have dispute with one Ghous Bux Junejo and others over the drainage of water. Today at noon time I alongwith my maternal uncle. Kamal son of Dhani Bux and 'Marot' namely Ahmed Ali, Muhammad Ali, Ghulam Shabir, Ghulam Yasin were standing in front of our house in the street. Suddenly at 3-00 p.m. namely 1. Ghous Bux 2. Nazir Muhammad 3. Mazher all three sons of Pir Bux,
4. Nizamuddin,
5. Din Muhammad both sons of Abdul Karim,
6. Shafi Muhammad,
7. Yasin both sons of Nasir Muhammad.
8. Waheed 9. lqbal both sons of Nizamuddin
10. Barkat,
11. Asghar both sons of Mazhar all by caste Junejo resident of village Dino Wahan, Taluka Dokri came. Out of them Ghous Bux, Shafi Muhammad, Yasin and Asghar were armed with guns, Nasir Muhammad was armed with revolver. Waheed was armed with pistol, Nizamuddin and lqbal were armed with hatchets and the rest of the accused persons were armed with Lathis. As they came, the accused Mazhar asked us that they had told them not to drain the water in the pond, but you did not do so. After that he instigated the other accused persons not to spare us. On his instigation Ghous Bux fired his gun at my Marot Ahmed All which hit him, who fell down, Nasir Muhammad fired his revolver straight at Kamal which hit him, who fell down. Din Muhammad caused Lathi injuries to me on head and other parts of the body. We raised cries of murder--- murder. The accused Yasin caused Lathi injuries to Ghulam Shabir and Muhammad Ali and lqbal caused hatchet blows to Muhammad Ali. On our cries and on fire-arm reports my maternal uncle Nihal Khan son of Dhani Bux, Marot Nizamuddin son of Nihal Khan, Marot Muhammad Bux son of Hoat Khan, my maternal aunt Mst. Hooran wife of Kamal Khan, cousin Fazul Muhammad son of Ghulam Muhammad and relatives Kamran son of Manzoor Ali, Akbar All son of Muhammad Bachal and Mst. Bilqees wife of Akbar Ali came raising cries and challenged the culprits from their houses.
The accused Shafi Muhammad fired his gun at Fazul Muhammad which hit him who fell down by raising a cry. The accused Asghar fired his gun at Mst. Hooran which hit her and she fell down.
Accused Yaseen fired his gun at Mst. Bilqees who fell down. Accused Waheed fired his pistol at Akbar which hit him who fell down. Accused Shaft Muhammad tired his gun at Kamran which hit him. Accused lqbal caused hatchet blows to Muhammad Bux. Accused Mazher caused Lathi . blows to Nizamuddin and Nihal. Accused Nizamuddin caused hatchet injuries to my Marot Nizamuddin. All of sudden male and female persons from village brought Holy Qur'an and requested the accused persons to go away. After that all the accused persons ran away towards southern side alongwith their respective. weapons. After the departure of the accused persons, we saw my marot Ahmed Ali was having gun shot injuries on his left side, bleeding and lying unconscious. My maternal uncle Kamal Khan was having fire-arm injuries on his right side, bleeding and was lying unconscious. Muhammad Bux was having fire-arm injuries on his back and hatchet injury on his head and right arm, bleeding, Yasin was having Lathi injuries on his head bleeding. Nizamuddin was having injuries on his head, left arm and right arm. Fazul Muhammad was having fire-arm injuries on his right arm and hand. Ghulam Shabir was having pellets injuries on his chest. Mst. Bilqees was having Lathi injuries on her right arm and head. Mst. Hoorn was having pellet injuries on her right cheek, left shoulder, left arm lip and stomach. Muhammad Ali was having Lathi injuries on his head and was bleeding. I took injured persons with the. help of villagers for treatment at Dokri Hospital. I also sent other injured persons to Larkana Hospital for further treatment, then I came to police station to lodge the F.I.R.
It is complaint that all the above named accused persons on the matter of drainage water have conspired with each other, formed an unlawful assembly and have murdered my maternal uncle Kamal Khan and Marot Ahmed Ali and also injured me and other relatives by firing from guns, revolver, pistol and used hatchet and Lathi. They have caused injuries to us in order to murder us."
The applicants moved' a bail application before the trial Court but the same was dismissed on 7- 3-2002. The said order was challenged before this Court but the same was withdrawn on the ground that there was counter-version which was not raised before the trial Court. The applicants were allowed to withdraw the application so that they can raise the said point before the trial Court. Therefore, the applicant moved bail application before the trail Court but the same-was again dismissed, hence the present application.
The learned Advocate for the applicant has argued that there is counter-version with regard to the same incident as the applicant Nizamuddin had filed F.I.R. bearing Crime No,88 of 2000 with an allegation that the complainant party had caused injuries to him when he was present in the street outside his house. He has further stated that the complainant party had suppressed the injuries caused to the applicant. Nizamuddin; that none of the applicant caused injuries to the deceased and that it is yet to be determined as to which party is aggressor therefore, the applicants are entitled for the concession of the bail. The Advocate for the applicant has relied upon the unreported cases of this Court in Criminal . Bail Application No,D-821 of 2001, Criminal Bail Application. No,154 of 2002 and one another case of Nazar Muhammad v. Talib Hussain which was reported in 1991 SCM R 1320.
On the other hand the learned Assistant. Advocate-General and Advocate for the complainant have stated that the counter-version of F.I.R. No,88 of 2000 was ordered to be disposed of as cancelled class and the matter has been referred to the. Magistrate for passing an appropriate order; that no direct complaint has been filed by the applicant; that in the incident two murders have been committed and out of them one was lady and five persons had received injuries from the hands of the present applicants; that all the accused persons went to the place of incident with common intention to cause the murders therefore, each member is responsible for commission of murders; that .the grounds of counter-version was not taken by the applicants in earlier bail applications filed by them therefore, they have opposed to the grant of bail to the applicants. The learned Assistant 'Advocate-General has not opposed the bail application of applicant Barkat as he had not caused any injury to any of the P.Ws. and was allegedly armed with Lathi. They have relied upon Aminul Haque v. The State (1994 M LD 1017) and Inayat v. The State-(2002 SCM R 129).
I have given due consideration to the arguments and find that the counter-version filed by the applicant Nizamuddin being Crime No,88 of 2000 has been ordered to be disposed of as cancelled class and the summary has been filed, before the Judicial Magistrate. No direct complaint has been filed by the applicants with regard to the said incident. In this case it will be seen that the incident had taken place in the street of the house of complainant and accused where the present applicant alongwith six other co-accused armed with deadly weapons first fired at the deceased Ahmed Ali. Other accused caused Lathi injuries to P.Ws. on which some ladies and other P.Ws. came. Again the accused fired at them with the result that one lady Mst. Hooran received injuries and died whereas the applicants had caused injuries to the P.Ws. excepting the applicant Barkat.
All these facts clearly indicate that there was common intention to commit the murders. In the counter-version allegation was made that the applicant Nizamuddin received injuries on his person. This by itself would not give the applicant a right of private defence to commit the offence.
Even if the counter-version is taken into consideration at this stage then also it appears that the applicants had exceeded the right of private defence. However, this point can be thrashed out at the time of trial. The authorities relied upon by the Advocate for the applicant are not applicable in the circumstances of the present case.
After considering the material available on the record I am of the considered view that the applicants excepting applicant Barkat against whom no part of causing injuries to any of the P.Ws. has been assigned are not entitled for the concession of bail. Therefore, their bail application is dismissed. In view of above position .the applicant Barkat is granted bail in the sum of Rs.1,00,000 on furnishing solvent surety and P.R. bond in the like amount to the satisfaction of the trill Court.
The application is partly allowed and partly dismissed.