1. ' SALMAN HAMID, J.---This post-arrest bail application has been moved by applicant Hyder Bakhsh who is booked in Crime No,14 of 2010 of Police Station Gerrelo, registered for an offence under sections 302, 337-A(i) 337-A(ii), 147, 148, 504, 34, P.P.C.
2. ' The allegation against the present applicant/accused as per F.I.R. Was that previously applicant/accused Haider Bakhsh had leveled allegations of Karap against aunt of complainant namely Mst. Bibul and Abdullah and claimed private faisla. On 16-3-2010 at 11-00 a.m. The present applicant/accused Haider Bakhsh duly armed with hatchet along with four other accused named in the F.I.R. Also armed with lathies, intruded into the complaniant's house where his father Muhammad Yaqoob, his brother Insaf Ali and mother Mst. Rahseeda were present. The applicant/accused challanged them by saying that they will not be spared as they have allowed Abdullah to live in their house, who was not giving faisla of karap. The applicant/accused along with co-accused, Baboo and Munwar then accused sharp sided hatchet blows to Muhammad Yaqoob, the father of complainant, by hitting him on his backside head over the ear and upon left eye. The co-accused, Suhbat and Ashiq Ali also caused lathi blows to Muhammad Yaqoob, hitting him on different parts of his body. Other members of the family, mentioned above when tried to save him, co-accused Suhbat and Ashiq caused lathi blows to complainant which hit him on his head and other parts of the body. Villagers came when they heard the cries and resultantly accused escaped. Later, the injured Muhammad Yaqoob was admitted to hospital where he succumbed to his injuries F.I.R. Followed thereafter.
3. ' It also appeared from the record that on the same day i.e, 16-3-2010 one Pahlwan, the uncle of present applicant/accused also lodged F.I.R. Vide Crime No,15 of 2010 at Police Station Gerello under sections 324, 147, 148, 149, 504, 337-A(i), 337-A(ii), P.P.C, narrating therein that he along with Khanan, Suhbat and his nephews, Allah Bux and Haider Bakhsh were in their house when at 11-00 a.m. Shareef armed with gun, (2) Muhammad Yaqoob armed with lathi, (3) Qurban armed with hachet (4) Abdullah and (5) Altaf Hussain (complainant of present Crime Case No,14/2010) duly armed with hatchets, entered into their house. Shareef caused straight fire from his gun at Hyder Bakhsh (present applicant/accused) which hit him on his right cheek, Subhat Khanan and Allah Bux tried to save him, on which Abdullah caused sharp side hatchet blow to his brother Subhat while Qurban and Altaf Hussain caused handle blows of hatches. Thereafter when villagers came for help, all above persons escaped. The injured were removed to hospital after receiving police letter and then F.I.R. No, 15 of 2010 was lodged.
4. ' The present applicant/accused was arrested during the course of investigation and was sent up to stand trial. The bail plea that was advanced on his behalf was declined by the trial Court, giving rise to the present bail application.
5. ' I have heard learned counsel for the parties and perused the material brought on record.
6. ' It was mainly contended by learned counsel for the applicant/accused that it is clear from the record that two counter cases were registered by the parties against each other in respect of one and the same occurrence and that no specific injury was attributed with the applicant/accused inasmuch as that according to F.I.R. No, 14 of 2010 lodged by the complainant against the applicant/accused three men attacked deceased Muhammad Yaqoob and whose blow was fatal is yet to be determined and besides that since F.I.R. No,15 of 2010 says that the complainant herein and other persons nominated in that F.I.R. Came and attacked the accused/applicant it is yet to be determined at the trial as to which party was aggressor and which party was aggressed upon as the applicant/accused himself sustained fire-arm injuries on his right cheek from the side of the complainant and that he (the complainant of this case) Altaf Hussain is also nominated accused therein. That admittedly there is conflict between medical evidence and ocular account and the police also did believe the version of complainant by letting of the persons who were shown as co- accused in F.I.R. No, 14 of 2010 when the complainant himself in a statement of 27-3-2010 exonerated all of them by stating that the accused/applicant came alone and also changed the statement regarding the nature of hatchet blow. In F.I.R. No,14 of 2010 the hatchet blow was from sharp side whereas in the statement it was from back side. According to the learned counsel the nature of hatchet blow was changed by the complainant because in the medical certificate the nature of wound that was shown, could have not been caused from the sharp side of hatchet. The learned counsel also argued that since the ground of aggressor and aggressed upon is very important part of this case, the ground of self-defence under the circumstances cannot be ruled out which can only be determined at trial at the time of cross-examination. In view of these submissions, learned counsel for the applicant/accused urged that the case calls for further inquiry. In support of his submissions, learned counsel relied upon the following case-laws:--
(1) 1972 SMCR 682, (2) 1976 SMCR 391 and (3) 1996 SCM R 1845 ' On the other hand learned counsel appearing for the complainant argued that the applicant/accused was nominated in the F.I.R. With role of causing hatchet injuries to the deceased Muhammad Yaqoob who succumbed to the same. All the prosecution witnesses in their statements under section 161, Cr.P.C. Have fully implicated the present applicant/ accused and that the F.I.R. Was lodged promptly and that registration of counter case itself confirms that the incident occurred and that in fact the counter case was falsely lodged in order to spoil the case of complainant and that the injuries allegedly received by the applicant/accused and others in the counter case were self-inflicted. Therefore, according to the learned counsel, applicant/accused was not entitled to the concession of bail. In support of his submission, learned counsel for the complainant placed reliance on the following reported cases:-
(1) 2005 PCr.LJ 1330
(2) 1997 PCr.LJ 1387 ' Learned counsel appearing for the State vehemently opposed the grant of bail on the ground that the applicant/accused was named in the F.I.R. And he was assigned role of causing hatchet blows to deceased Muhammad Yaqoob.
7. ' I have carefully considered the submissions of learned counsel for the parties and evaluated the record as well as the case-laws cited at the bar.
8. ' As per F.I.R. No, 14 of 2010 lodged by complainant Altaf Hussain on 16-3-2010 at 1700 hours, accused Baboo Munwar, Hyder Bakhsh (applicant/accused) all armed with hatchets, Suhbat and Ashiq both armed with lathies, intruded into their house. Accused/applicant Hyder Bakhsh, Baboo and Munwar caused hatchet blows to his father Muhammad Yaqoob, hitting on the back side of head right ear and over the left eye and then other accused also caused lathis blows to him (complainant) and other P. Ws. And after departure of accused party, the injured was removed to hospital where he succumbed to his injuries and then the F.I.R. Was lodged to the above effect.
9. Perusal of record further reveals that during investigation on 27-3-2010 complainant Altaf Hussain recorded his further statement before police in which in his wisdom tried to improve the prosecution story and only implicated present applicant/ accused Hyder Bakhsh by specifically stating that in fact it was only the present applicant/accused Hyder Bakhsh who entered into their house and caused hatched injuries to his father who succumbed to his injuries in the hospital. He further stated that all other accused named in the F.I.R. Were innocent as they were not present with the applicant/ accused Hyder Bakhsh. This alone creates major dent in the prosecution case and brings into question the veracity of the prosecution case against the present applicant/accused which needs further probe that as to which version of the complainant is correct out of the above two.
10. ' The role attributed to the present applicant/accused Hyder Bakhsh is general in nature as it was alleged in the F.I.R. No,14 of 2010 that applicant/accused Hyder Bakhsh, co-accused Baboo . And Munwar collectively caused hatchet injuries to the deceased therefore guilt of the applicant/accused calls for further enquiry into the matter as it is yet to be determined at the trial as to who caused fatal injury to the deceased or whether at all injury was caused by the applicant/accused or was it self-defence as argued by the learned counsel appearing for him.
11. Since as per F.I.R. No,15 of 2010 deceased went to accused/applicant's house and that accused/applicant received bullet injury on his cheek and under the circumstances as to who was the aggressor and who was aggressed upon is yet to be determined at trial. As to the submission of learned counsel for the complainant that the counter case lodged by the accused/other party was falsely lodged only to spoil the case of complainant and grab leniency in the case registered against the applicant/accused party. I have observed that in the counter case present applicant Hyder Bakhsh also received fire-arm injury on his cheek which being the sensitive part of body, on the face of it does not seems to be self-inflicted. The! Afore, it is yet to be determined at the trial as which version is correct out of two, making the case against the present applicant/accused one of further inquiry.
12. ' In the case of Elahi Bakhsh v. The State (1972 SCMR relied upon by learned counsel for the applicant/accused, a counter case was registered by the accused party and while considering the question whether the accused or deceased was aggressor or aggressed upon, the full Bench of Hon'ble Supreme Court held that the High Court rightly granted bail to the accused by exercising discretion in favour of accused, keeping in sight the point of determining aggressor and aggressed upon. In the case of Fazal Muhammad v. Ali Ahmad and 3 others (1976 SCM R 391) considering the fact that bail was granted to the accused by High Court on the ground that there were cross cases registered by both the parties in the same incident and some accused also received grievous injury on head the Hon'ble Supreme Court held that the case in the circumstances was not fit to be interfered with for cancellation of hail which was granted by the Lahore High Court, looking at the circumstances that two cross cases were filed against each other in respect of same occurrence.
13. In the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCM R 1845), it was held by Pull Bench of Hon'ble Supreme Court of Pakistan that case of two counter versions arising out of same incident; one given by the complainant in F.I.R. And the other given by the opposite party, such cases are covered for grant of bail on the ground of further enquiry contemplated under S.497(2), Cr.P.C. Petitions for cancellation of bail were dismissed.
14. ' As regards the case relied upon by learned counsel for the complainant in the case of Zarif Khan v.
15. The State and another (2005 PCr.LJ 330), there were only two accused out of whom role attributed to the applicant/accused Zarif was that he caught hold of deceased who sustained dagger blows at the hands of co-accused Nazir. Therefore, bail was refused by the High Court while holding that accused had actively facilitated the other accused who caused murder. In the case of Mehr Ellahi v. The State (1997 PCr.LJ 1387), also the same allegations were levelled against the accused that he held deceased and gave kicks and fists blows while his co-accused Shoukat Ali and Azmat gave Chhuri blows to him Bail plea advanced on his behalf was refused. The facts and circumstances of these cases do not apply in the present case as it is a case of cross cases/cross F.I.Rs, in which there are two parties in respect of the same incident allegedly occurred on the same date and time. In the F.I.R. Also role of general allegations was attributed against the applicant/accused to the effect that he and co-accused Baboo and Anwar caused hatchet injuries to his father Muhammad Yaqoob who succumbed to his injuries in the hospital therefore, besides the above position, it is yet to be determined at trial as to who caused fatal injury to the deceased as well as out of two who was aggressor and who was aggressed upon or which version out of two taken by the complainant, one in F.I.R. Or the other in his further statement was correct.
16. ' The upshot of the above discussion is that the prosecution case against the present applicant calls for further inquiry and at this stage the applicant/accused has made out a case for grant of concession of bail. Therefore, while relying on the above judgments passed by Hon'ble apex Court. I am inclined to grant concession of bail to the present applicant, subject to his furnishing solvent surety in the sum of Rs,300,000 and P.R. Bond in the like amount to the satisfaction of trial Court.