1. ' The facts according to F.
1. R. Lodged by one Mohammad Bux Mochi on 17th June, 1977 at Police Station, Dubar of District Sukkur, are that he owns cattle which his younger brother is grazing. He, his father and his brother Khair Mohammad are doing cultivation work of Munawar Khan Pathan. It was on 11th June, 1977, when complainant's brother Achar took their cattle for grazing and returned at about 6.30 p. m.
2. And informed them that Rehmat son of Alim had fought with him. The complainant went to Alim and others to complain and found Alim, Hadi Bux, Illahi Bux, Karim Bux and Karim Dino coming towards their houses on a thorough fare, He complained to Alim that his son Rehmat had fought with his brother Achar when he was grazing his cattle. On this Alim abused the complainant whereas others attacked upon him with lathis and hatchets. Rabban, father of the complainant seeing this from his house came out on commotion. Hadi Bux, and Karim Bux who were also armed with hatchets reached there and gave hatchet blows to Rabban on his head and other parts of his body whereas other accused gave lathi blows to the complainant which hit on his finger and back side. He and his father raised cries which attracted his brother Khair Mohammad ane Qabool Kahar, who came and witnessed the above incident and rescued them. The complainant found injury on the left side of head of his father which was bleeding and he had another injury on the left arm near the shoulder. Karim Bux accused also sustained injury in this fight. The complainant after leaving his father at his house was going to police post Saleh-Pat when Alim came behind with Holy Qur'an and told him that he should not report and have a 'atheri faisla. The complainant returned to his house and got his father treated privately but his condition become serious after a few days. He therefore leaving his father at his house lodged this report.
3. ' The Police after usual investigation sent up the present applicants along with three others to stand trial under section 302/34, P.P.C.
4. ' The bail application was moved on behalf of the applicants which was rejected by the learned 1st, Additional Sessions Judge, on the ground that the applicants were facing a charge of murder and the case of each of them was to be judged on its merits.
5. ' The learned counsel, for the applicants, contends that there is counter-version filed on the same day by the applicant Karim Bux, who has also received a grievous injury during this fight which has been admitted by the complainant in his F. I. R. He also contends that there is delay of about 4.5 days in lodging the F. I. R. And the complainant Mohd. Bux who is accused in the counter case filed by the applicant, is on bail along-with his brother Khair Mohd. He relies upon Zafar Igbal v. State (1) where there Lordships of the Supreme Court have allowed bail in counter cases. He has also relied upon Shah All v. State (2), wherein bail has been allowed in case of counterversion. He has also relied upon Ali Murad v. State (3), wherein it has been held, that "it is, therefore, yet to be established whether the culprits had no intention to commit murders or that the murders were committed in prosecution of the common object of unlawful assembly formed by them".
6. ' The learned counsel for the State, does not oppose grant of bail to the applicants in view of the fact that their being counter case and their F. I. R. Were delayed for 4.5 days and it was yet to be established as to which party was aggressor.
7. After having heard the learned counsel for the applicants and State, I feel that parties have chosen not to file F.
1. R. Promptly because the incident was not the result of any premeditation. Moreover the applicant Karim Bux has also suffered a grievous injury in the same fight and the present applicants have remained in jail for 21 years by now and their cas has not yet proceeded. It would be premature at this stage to decide as to a which party was aggressor and therefore the case of the applicants unde the circumstances require further inquiry as contemplated by clause (2) o section 497, Cr. P.
8. C. Therefore without going into the merits of the case. I grant bail to both of the applicants who shall be released on furnishin solvent surety in the sum of Rs, 20,000 each and P. R. Bound in the like amount to the satisfaction of the trial Court.