Mira Jan who has been charged for the murder of Ikhtiar Shah and hurt to his brother Gulab Shah under section 302/324/34, P. P. C. Has moved this petition for bail after that his bail was cancelled on an application moved by Sakhi Shah, a -brother of the deceased and his injured brother Gulab vide order dated 17-9-1978 of the Additional Sessions Judge, Peshawar.
2. The main ground that is being pressed in support of the petition is that on the side of the petitioner two persons namely, Faqir Gul and Wazir Gul were injured as indicated below:- Injuries of Faqir Gul:
(1) A stab wound 1" x 1/4" on left Hypochondrium (corresponding marks present on shirt and banyan).
(2) An incised wound 3" x 1/4" skin on left arm (corresponding mark present on the shirt).
Weapon: sharp.
Injuries of Wazir Gul:
(1) A stab wound 2" x 1/2" right hypoehondrium.
(2) An incised wound 2" x 1/2" skin deep on left hand medial aspect.
(3) An incised wound 1" x 1/4" skin deep on left forearm dorsal aspect.
(4) An incised wound 1" x 1/4" skin deep on left forearm ventral aspect.
Result: simple.
And that as far as the deceased is concerned he succumbed to the injury of afire shot from a pistol attributed to Mira Jan petitioner, 20 days later after that he developed peritonitis in the hospital. To complete the picture injuries received by Ikhtiar Shah and Gulab Shah can also be given in this context.
Injuries of 1khtiar Shah:
(1) F/A wound 1/4" in diameter on left lumber region on back (corresponding mark present on the shirt and banyan).
(2) Swelling and F. B. Sensation on left side of chest in front. Bullet removed from the wound No. 2 mentioned above.
Weapon: F/Arm.
Result: Grievous.
Injuries of Gulab Shah:
(1) An incised wound 1/2" x 1/4" skin deep on nose.
(2) Oedema left cheek. (3) Abrasion right leg.
Cause: wound No. I sharp.
Cause: wounds Nos. 2 and 3: Blunt.
Result: simple.
3. The learned counsel for the petitioner adds that his clients were the first to report the matter in the police station and that fact of the matter was that the occurrence took place in front of a house of one Mufti Nisar with whom his clients had a dispute over the payment of rent. There was no enmity between the two parties and particularly the complainant party in this case had nothing to do with Mufti Nisar. The flare-up between the two parties was sudden and it would he indeed difficult to determine as to who was the aggressor and who was the aggressed. The learned counsel further added that since Haji Sakhi Shah, a brother of the complainant (deceased) of the present case has been allowed bail by the learned Sessions Judge, in the cross case moved by the side of the petitioners, it will be fair and equitable, that on a consideration of the injuries sustained by their side, they should be also allowed similar treatment. The learned counsel concluded that if that was not to be done then in the Criminal Miscellaneous No. 750/78 wherein he has prayed for cancellation of the bail allowed to Haji Sakhi Shah the latter's bail should be cancelled. This order will also dispose of the Criminal Miscellaneous No. 750/78.
4. In support of his assertion, Mr. Mohammad Aman Khan, who is appearing for Mira Jan petitioner, invited my attention to 1972 SCMR 682 1972 P Cr. L J 300 and a Peshawar ruling on page 65 of that Journal. He has also referred me to an unpublished, judgment of mine in Criminal Miscellaneous No. 435/76 decided on 29th September 1976. The proposition that the learned counsel has advanced is that in cross cases both the parties have to be treated at par, particularly, when it cannot be said, who is the aggressor and who is the aggressed. In rebuttal of this proposition the learned counsel for the respondent cited 1976 P Cr. L J 431 and 1976 P Cr. L J 606. The learned counsel says that it is not inflexible rule that where there are cross cases and bail has been allowed to one side, it shall automatically be allowed to the other side. The Additional Advocate-General has referred me to 1977 SCMR 512, in support of his contention that where there are two versions requiring examination at the trial the High Court's order giving cogent reasons for refusing to grant bail and not exercising its discretion either improperly or illegally, will not call for interference on the part of the Supreme Court. There is, however, no quarrel with the proposition advanced by either side that in a criminal matter the pre-eminent question is the- merit of that particular case, for, facts of two criminal cases are seldom similar.
5. It is true that Ikhtiar Shah's injuries proved fatal but it will be seen that the injuries sustained by the complainant party were also dangerous to life. In the absence of enmity and the fact, that the complainant party has described the incident as Jhagra. I find it rather difficult to hold tentatively as to who was the aggressor and who was the aggressed. Unless there is some evidence on the record it may not be possible to spell that out clearly. It is true that in sudden fights the liability is individual, but this does not mean that the accused is not entitled to take any valid defence that might be available to him. Since it is more in accord with justice that parties shall be treated at par it will be rather hard to cancel the bail allowed to Sakhi Shah whose brother has lost his life. I consider it to be more equitable that instead of recalling his bail, I should extend similar treatment to thd petitioner of the present case.
6. For the reasons, I will dismiss the application for the cancellation of bail moved against Sakhi Shah by Faqir Gul and allow the bail application of Mira Jan.
7. If Mira Jan executes a bond in the sum of Rs. 1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of Illaqa Magistrate, he should be released from custody.