' HASNAT AHMAD KHAN, J.---The petitioners seek bail after arrest in a case under sections 337- A(i)/337-F(i)/337-A(ii)/337-L(ii), 302/148/149, P.P.C. Registered against them at Police Station, Hawaili Koranga, Khanewal vide F.I.R. No.66 of 2006, dated 11-5-2006.
2. The brief facts of the case as narrated in the F.I.R., which was lodged on the statement of Manzoor Hussain, are that on the night of 11-5-2006 at 3 a.m. The complainant along with his son Muhammad Rafique and grandson Muhammad Afzal, grandson was sleeping in his house and after hue and cry from the land of Manzoor all of them rushed towards his land and found Muhammad Arif and Zulfiqar armed with .12 bore guns, Muhammad Afzal armed with Kassi, Manzoor, Murtaza, Zulfiqar, Zahoor, Dilmeer (peitioner), Allah Ditta, Muhammad Bakhsh and Zafar (petitioner) armed with sotas while Rab Nawaz seated on the tractor. The accused allegedly caught hold of Allah Yar, Muhammad Ramzan and Khan Muhammad P.Ws. Barring Rab Nawaz, Allah Ditta and Arif co-accused, all the accused allegedly caused injuries on the persons of Allah Yar, Afzal, Ramzan and Khan Muhammad P.Ws. While Arif co-accused caused the death of Muhammad Rafique son of complainant while inflicting a fire-arm injury on his chest. The motive of the occurrence was stated to be that Muhammad Arif, co-accused had illicit relations with the wife of Allah Ditta Nakiana and the complainant had stopped him from visiting the house of saidAllah Ditta and due to said reason an exchange of abuses took place a day earlier to the occurrence.
3. The petitioners were arrested in the said case. They applied for bail after arrest before the learned trial Court but the same was refused vide order, dated 29-9-2006.
4. The learned counsel for the petitioner contends that it was a case of free fight in which three persons namely, Zahoor, Manzoor and Dilmeer petitioner also received injuries; that it was a night time occurrence; the role of causing a sota blow by Dilmeer petitioner on the knee of Khan Nakiana is negated by the fact that said Khan was not medically examined; that likewise the role of causing fist blows by Zafar petitioner Manzoor complainant also becomes doubtful as said Manzoor was also not medically examined. He adds that it was the complainant party who attacked the accused party and during the occurrence three persons on the side of the accused party sustained injuries. In all said three injured accused have received 12 injuries on their persons which include injuries on the vital parts of their bodies but police malafidely failed to record counter version of the accused party. He further adds that co-accused namely Ghulam Murtaza, Allah Ditta and Rab Nawaz have already been granted bail by this Court vide order, dated 18-10-2006 as such- they are entitled to bail on the principle of consistency also. Lastly he has contended that no injury received by the deceased has been attributed to them.
5. The learned counsel for the State assisted by learned counsel for the complainant has opposed the bail application on the ground that the petitioners have been named with specific roles in the F.I.R. Which was promptly lodged. He has further contended that the injuries received by the accused persons have been fully explained in the F.I.R. Lastly he has contended that charge in this case has been framed on 13-10-2006 and the case is fixed for prosecution evidence. In this regard he has placed reliance upon Gulzar Ahmad v. State (1995 PCr.LJ 1494), Muhammad Sadiq v. State (1980 SCM R 203) and Muhammad Jamil v. Muhammad Rafique and another (PLD 1989 SC 585).
6. After hearing both the parties I have come to the conclusion that the role attributed to the petitioners is not supported by the Medico Legal Certificate inasmuch as neither Khan P.W. Nor the complainant was medically examined. This fact has not been denied by the learned State counsel.
The question as to which of the parties was aggressor would be determined by the learned trial Court after recording of evidence. As far as submission of the learned counsel for the complainant that the charge has been framed and the accused are not entitled to bail on this count is concerned it would be relevant to point out here that said charge wasframed on 13th of October, 2006 while bail application of co-accused namely Ghulam Murtaz, Allah Ditta and Rab Nawaz was accepted by my learned brother Maulvi Anwar-ul-Haq, J vide order, dated 18-10-2006 and even otherwise it is settled law that if the case is found to be of further inquiry the accused becomes entitled to bail as a matter of right and when the question of right is confronted with the question of propriety, the later must give way to the earlier. This proposition was expounded in the judgment pronounced by the Hon'ble Supreme Court of Pakistan in case reported as Muhammad Ismael v.
Muhammad Rafique (PLD 1989 SC 585). Keeping the judgments reported as Muhammad Sadiq v.
State (1980 SCMR 2003) and Muhammad Ismael v. Muhammad Rafique and another (PLD 1989 SC 585) in consideration now I proceed to examine the facts of the case to see whether the case of the petitioners requires further inquiry or not. After scanning the record I have come to the conclusion that as far as Zafar accused is concerned the role (of causing fist blows to Manzoor) attributed to him is not supported by the Medico Legal Certificate and according to the complainant he has not caused any injury to the deceased. Further more no recovery has been effected from him. It is night time occurrence. Net, prima facie, has been thrown by the prosecution, much wider. Considering all these circumstances I have come to the conclusion that the prosecution case to his extent requires further inquiry, and question of his participation in the fight is open to doubt and as such he is entitled to bail as a matter of right and even on the rule of consistency he is entitled to bail as his role is almost at par with that of above mentioned co- accused Allah Ditta.
7. As far as the case of Dilmeer petitioner is concerned though role to his extent is also negated by the fact of non-production of the MLR of Khan P.W. Who was allegedly injured by the said petitioner but his case becomes distinguishable from the case of Allah Ditta and Zafar, co-accused as according to the petitioner himself he was injured during the occurrence and as such his presence at time of occurrence cannot be doubted. Moreover recovery of sota has also been effected from him as such according to my humble view he has not succeeded to make out a case of further inquiry. In this regard reliance has been placed upon Javed v. State (2000 PCr.LJ 262). Accordingly the petition to the extent of Dilmeer petitioner is dismissed while the bail application of Zafar is accepted. He is allowed bail, subject to furnishing bail bond in the sum of Rs,1,00,000 (rupees one lac) with one surety in the like amount to the satisfaction of the trial Court.
' Before parting with the order it is observed that trial Court would decide the case without being influenced by this order.