1. ORDER BIN YAMIN, J. - This order will dispose of Bail application made on behalf of applicant/accused Bashir Ahmed and Nazir Ahmed both sons of Bhambhoor, and Kaman son of Shah 'Bux, who are detained in case F.I.R. No. 8/2007, registered under Sections 302/324/148/149/337- H(2), P.P.C, of Police Station Gemro.
2. Brief facts of the case are that on 16.10.2007 complainant Rahim .Bux lodged F.I.R, of this case stating therein that lands of the complainant and one Alam son of Kaman Galo Chachar is situated adjacent to each other. That yesterday at evening time Alam Chachar started making path with the spade. On which son of the complainant namely Ghulam Mustafa raised objection, as to why he is levelling the path, which passes through their land. On this some harsh words were exchanged and thereafter, scuffle also took place in-between above named persons.
3. It is further alleged that Alam at that time had threatened Ghulam Mustafa that as he has insulted him therefore, he will see the result. On the day of incident complainant, his son Ghulam Mustafa and his cousins Abdul Karim and Mazar and other persons whose names are given in the F.I.R, were present at their house alongwith their family members. At about 8.00 hours accused persons namely, (1) Kaman son ,of Shah Bux Chachar;.(2) Alam son of Kaman Chahchar; (3) Mehewal son of Alam Chahchar; (4) Ghous Bux son of Nihal Chachar; (5) Hasib son of Shah Bux; (6) Bachai son of Shah Bux; (7) Mehrab son of Chutoo; (8) Arbab son of Chutoo; (9) Nazir Ahmed son of Bhambho Chachar; (10) Bashir Ahmed son of Bhambho; (11) Gulzar son of Bhambho; (12) Mir Hassan son of Bhambho; (13) Ali Bux son of Chutto; (14) Nawaz Ali son of Lai Bux; (15) Akbar Ali son of Jilal Chachar;
(16) Asghar Ali son of Nawaz Chachar; and (17) Wazir Ali son of Bhambho Chachar all residents of Mohalla Rahimu Wali Ghotki alongwith five unidentified persons, having fire-arm in their possession entered into their house. At that time accused Kaman challenged the complainant party saying that they have insulted and beaten his son Alam yesterday therefore, they will not be spared.
4. Thereafter, accused Ghous Bux made fires of Kalashnikov with intention to kill Abdul Karim, who on sustaining fire-arm injury fell down on the ground.
5. That accused Ghulam Akbar made gunshot at his son Ghulam Mustafa, whereas accused Bashir Ahmed made Kalashnikov fires at Karim Bux. Accused Gulzar and Mir Hassan made Kalashnikov fire-arm injuries also fell down on the ground, itis also alleged that in the incident accused. - Mehrab caused gunshot injury to Mst. Jeenab alias Zainab whereas accused Ali Bux caused fire- arm injuries to Mst. Gullam alias Lalan wife of Bashir Ahmed. Accused were requested in the name, of Holy Quran to spare the complainant party, whereupon the accused by making aerial firing went away from the place of Wardat. The incident was also seen by Nawab son of Belo Chachar.
6. After departure of the accused, complainant found that Abdul Karim on sustaining fire-arm injuries have expired at the spot, whereas Ghulam Mustafa sustained fire-arm injuries on his both legs and right thigh, Karim Bux on his both legs whereas Mazar sustained injury on his head. That Mst.
7. Jeenab alias Zainab sustained fire-arm injury on her left arm. That thereafter, complainant shifted injured to Taluka Hospital, Ghotki alongwith dead-body of deceased Abdul Karim and after leaving Nawab sons of Balo Chachar he came at police station and ledged the F.I.R.
8. It is further stated that in respect of the same incident a ^counter F.I.R, bearing No. 09/2007, under Sections 395/397/324, P.P.C, against (1) Mushtaq; (2) Shabbir; (3) Gul Muhammad; (4) Rehmat; (5)
9. Ali Bakhsh; and (6) Abdul Karim was also lodged by one Muhammad Hasil on 17.10.2007. After registration of this case police arrested applicant/accused Bashir Ahmed on 25.10.2007 whereas Nazir and Kaman were earlier granted interim pre-arrest bail but the same was not confirmed therefore, they were arrested on 25.3.2008. Since the time of their arrest, applicants are behind the bars. Earlier bail application made on behalf of applicant was rejected by the Court of Special Judge-II, (C.N.S.), Karachi, hence this bail application.
10. Heard Mr. Mahmood A. Qureshi learned counsel for applicant, Mr. Muhammad Iqbal, Additional Prosecutor- General and perused the case papers.
11. Learned counsel for applicant/accused submitted that as many as 17 persons were nominated in the F.I.R, lodged by the complainant. However, during the course of investigation out of those seventeen, eight were found innocent and they were let-off by the police and not challaned in the Court. That in view of this situation the allegations levelled by the PWs against the remaining accused persons also become doubtful and requires further enquiry. He further submitted that with regard to the same incident a 'counter F.I.R. No. 9/2007 under' Sections 395/397/32.4, P.P.C.was also lodged by Muhammad Hasil, who belongs to the complainant party. That the perusal of said complainant which is available from- pages 47 to 5 of this Bail application shows that in the incident accused Nazir Ahmed sustained fire-arm injuries" on his head, accused Bashir Ahmed sustained fire-arm injuries on his, right leg from back side and co-accused A1 I Bux sustained fire- arm injuries on right side of back thus three persons including two accused from the accused side also sustained injuries in the side incident.
12. He further contended that the complainant in his F.I.R, has nowhere stated that they also caused injuries to the applicants/accused and others in the incident. That as there are counter-cases lodged by the parties against each other and both sides sustained injuries therefore, in such like circumstances, it is yet to be determined as to who was aggressor and who was aggressed therefore, having regard to this aspect of the case, the case falls within the purview of further enquiry. That it is well-settled principle of law, that where, there are counter-cases and the complainant party having caused injuries to the accused party, suppressed these facts in the F.I.R, then the accused are entitled to grant of bail as their case becomes that of further enquiry, In this regard he has relied upon the cases reported in 1990 P.Cr.L.J. 929; 1988 P.Cr.L.J. 2317, 1986 P.Cr.L.J.
13. 205, NLR 1990 Cr.LJ. 70, 1994 SCM R 1928, 1987 SCM R 861 and 1978 SCMR346.
14. That even at the time of arrest of the application/accused no incriminating article was secured from the possession of the accused to show that they caused death and injuries to the members of the complainant party, he therefore, requested for grant of this bail application.
15. Learned State counsel appearing for prosecution has strongly opposed this bail application and submitted that the applicant/accused are nominated in the F.I.R, and furthermore an active part in the commission of offence has been assigned to them. That perusal of mashirnama of wardat shows that the incident took place in the courtyard of the complainant party, which clearly indicates that accused after forming unlawful assembly attacked on the complainant party and besides causing injuries to PWs also caused death of one Abdul Karim. - That the case is at preliminary stage and none of the prosecution witnesses has been examined therefore, the applicant/accused are not entitled to the grant of bail. However, he has not disputed the fact that a counter case with regard to the same incident has been lodged by the accused party against the complainant party and that in the said incident two of the applicants/accused and one other person of their party also sustained injuries. He has also not disputed the fait that the complainant party has not given the fact of sustaining injuries by the accused person in the said incident, in the F.I.R, of their case. He lastly requested for rejection of instant bail application.
16. I have considered the contentions raised at bar and have also perused the material available on the record. Admittedly in response to the F.I.R, lodged by the complainant party of this case a counter-F.I.R. No. 9/2007 (sic) under Section 395/397/324, P.P.C, was not recorded by accused Muhammad Hasil against the complainant party.
17. Furthermore, the complainant party in their F.I.R, or their statement recorded under Section 161, Cr.P.C, had not stated that the members of the accused party including two applicant/accused also sustained injuries in this incident, which shows that the complainant party have intentionally suppressed the material facts of causing injuries to the accused party to avoid their responsibility.
18. They even had not taken the plea that they caused injuries to the member of the accused party in self-defence. As counter-cases are registered by the parties against each other and furthermore, complainant party has not explained injuries, suffered by the, two appellants/accused and their own other companion therefore, principle laid down in the afore-noted cited cases regarding grant of bail in such like case is fully applicable to the facts of the present case....
19. In view of the above-noted discussion the case of the applicants/aCcused falls within the purview of further enquiry therefore, they are entitled to the grant of bail at this stage, I therefore, allow' this bail application. Applicants/accused namely Bashir Ahmed, Nazir Ahmed and Kaman be released on bail subject to their furnishing surety in the sum of Rs. 1,00,000/- each with P.R. Bond in the like