1. ' AQEEL AHMED ABBASI, J.---Granted subject to all just exceptions.
2. Being aggrieved and dissatisfied with the order dated 20-10-2010 passed by the learned 3rd Additional District and Sessions Judge Karachi West in Criminal Bail Application No,1117 of 2010, who dismissed the same, hence this bail application is filed by the applicant/accused above named in this Court.
2. ' Brief facts for the purposes of disposal of the instant bail application and prosecution story as stated in the F.I.R. No,530 of 2010, registered on 19-10-2010 under section 324/34, P.P.C. At Police Station Mominabad Karachi, are as under:-- "Verbally complainant, I am residing at above mentioned address along with my family. My paternal cousin namely Khudai Noor son of Noor Latif is also residing with me in one house. Khudai Noor have shop of ice deppu at main road Afridi Colony near Ibrahim Masjid and .Adjacent to his ice deppu there an ice deppu shop of one Manjawar Shah who is annoyed towards us in the context of ice business and most often uses to harass us without any reason. Yesterday on 18-8- 2010 at 5 0' Clock in the evening, our children and Manjawar Shah's children started quarreling with each other on some issue, my, child told me, as such at about 10 0' Clock I went to the ice deppu shop of Manjawar Shah and asked Manjawar Shah to convince your children, your children always remain quarreling with our children, on this Manjawar Shah irritated, as such I came back to my shop and after a short while Manjawar Shah along with his brother (1) Ibrahim, (2) Madad Khan and Bhoora holding wooden stick and spades came at the shop of my cousin Khudai Noor. One cousin of Khudai Noor namely Rehmatullah was present with him in the shop and I was also present there. As soon as all the four persons came there, they started beating us with sticks and spades. Manjawar Shah hit a spade on the head of Khudai Noor, due to which he was injured and bleeding and fell down on the ground, the other brothers of Manjawar Shah also caused injuries to Rehmatullah by hitting sticks, Rehmatullah sustained injuries on forehead and right elbow and he was bleeding and I also sustained minor inner injuries. I along with my relatives took our injured cousins Khudai Noor and Rehmatullah to Abbasi Shaheed Hospital by ambulance for medical treatment and came/appeared at police station and report the matter. My complaint is against Majawar Shah and his three brothers named above for beating my cousins with sticks and spades with intention of killing and causing grievous injuries to them, legal action may be taken, Medical letter may be given for medical treatment. I read the report and same is correct.
3. ' Learned counsel for the applicant has submitted that the applicant/accused had earlier filed bail application bearing No,1017 of 2010 and the same was dismissed as withdrawn vide order dated 13- 10-2010 and now he has filed fresh bail application before this Court. Learned counsel submitted that the applicants/accused is innocent and has been falsely implicated in this case by the complainant with mala fide intention, ulterior motives and due to rivalry of business. Per learned counsel, there is no reasonable ground to believe that the accused/ applicant has committed the alleged offence and the allegations levelled by the prosecution against the accused/applicant are false and fabricated. Per learned counsel, the factual position is that the complainant party itself had assaulted first on the applicant/accused persons in aggressive manner, resultantly the applicant/accused party reacted in their self defence. Per learned counsel, the applicant/accused party have also lodged an F.I.R. Bearing Crime No,531 of 2010 under sections 147, 148, 149/34, P.P.C., hence there is a counter version between the parties. Per learned counsel, the injury sustained by one Khudai Noor is not serious or grievous in nature and the police has lodged the present F.I.R. On the verbal complaint of the complainant without any medical examination report, which reflects upon the mala fide intention on the part of the prosecution. Per learned counsel, nothing has been recovered from the possession of the applicant/accused nor the applicant/accused has played any specific role in the commission of offence and the alleged recovery shown by the police is foisted upon the applicant. Learned counsel further submitted that besides, this being a totally false and frivolous case against the applicant/accused, the offence does not fall within the prohibitory clause, whereas the matter requires further inquiry. It is further argued that the other co-accused have been granted bail whereas bail has been declined to the present applicant who is head of his family and has been implicated in the alleged crime to injure his reputation. Per learned counsel, since there is cross version of both the parties whereas it is yet to be determined as to which party is aggressor and who has been agreed upon, therefore, applicant/accused may be released on bail as all other accused persons in both the F.I.Rs, are on bail. In support of his contention, he has placed reliance on the following judgments:
(1) Aurangzeb v. The State 1999 PCr.LJ 230
(2) Umar Hayat v. State 2008 SCMR 1621
(3) Jan Muhammad v. The State 1998 SCMR 500
(4) Muhammad Rafique v. The State 1997 SCMR 412
(5) Khalid Taqi v. The State 1999 PCr.LJ 271 ' Conversely, learned counsel for the complainant has opposed the grant of bail to the applicant/accused on the ground that since the applicant has been nominated in the F.I.R. And specific role has been assigned to him for causing injury on the head of the injured, therefore, he is not entitled for the grant of bail. It is further submitted that there are eye-witnesses of the incident including the injured, whereas the role of the applicant, is distinguishable from the role of other accused persons, therefore, the rule of consistency is not attracted under the circumstances of the case. Learned counsel further argued that the other accused persons have been granted bail as the matter has been compromised with them, whereas the applicant has not compromised the dispute with the complainant party who are still willing to get the dispute patched up out side the Court. In support of his contention, he has placed reliance on the following case-laws:--
(1) Ehsan Sarwar v. Muhammad Nasim and 5 others 2005 PCr.LJ 546
(2) Amjad Jawed v. The State PLD 2007 Karachi 336
(3) Malang Said v. The State 2004 PCr.LJ 1087 (Peshawar)
4. ' The learned A.P.-G. Has also opposed the grant of bail to the applicant/accused on the ground that since the injury has been caused on the vital part of the injured, therefore, the applicant/accused is not entitled to concession of bail by this Court. It is further argued that the ground of cross version and the plea of aggressor or aggressed upon cannot be considered at this stage as the same requires evidence and since there is sufficient material connecting the applicant/accused with the instant crime, the applicant is not entitled to the grant of bail.
5. ' I have heard both the learned counsel for the parties as well as learned APG and perused the record. On tentative appraisal of the record it appears that there are cross F.I.Rs, by both the parties against each other of the same incidence which appears to have taken place pursuant to a dispute between the children of both the parties. It further appears that the accused persons nominated in both the F.I.Rs, are on bail, whereas the applicant/accused is behind the bars. The M.L.O report produced by the prosecution suggests the injury as Shujjah-Mudihah with no facture on the skull which attracts the provision of section 337-A (ii) for which punishment of 5 years is provided. In the case of Jan Muhammad v. Haji Noor Jamat and another reported as 1998 SCMR 500 the Hon'ble Supreme Court while explaining the provision of section 324, P.P.C. Read with section 337, P.P.C. Has observed that the offence under section 337, P.P.C. Does not fall within the prohibitory clause section 497(1), Cr.P.C, hence the applicant/accused was admitted to bail. In the case of Umar Hayat v. The State 2008 SCMR 1621, under similar circumstances wherein 4 to 5 shots were fired from the pistol which has caused injury on the left knee of the complainant, in spite of such fact the applicant/accused was granted bail by the Hon'ble Supreme Court. It further appears that during the course of arguments both the counsel express their willingness to compromise the matter as the alleged offence is compoundable. Moreover, the other accused persons namely, Ibrahim, Madad Khan and Amir Khan were granted pre-arrest bail, which was duly confirmed by the trial Court as the complainant conceded to the grant of such bail application, however, since the applicant/ accused is behind the bars such compromise could not be materialized. The applicant/accused is reportedly a man of advance age who is willing to settle the dispute, whereas the matter appears to have been compromised between other accused persons whose bail was not opposed by the complainant party.
6. ' Keeping in view hereinabove facts, the applicant/accused is admitted to bail subject to furnishing surety in the sum of Rs,1,00,000 (Rupees One Lac) with P.R. Bond in the like amount to the satisfaction of the trial Court.
7. ' It is clarified that if the applicants/accused misuses the concession of bail in any manner, the learned trial Court shall be at liberty to proceed again applicant/accused as per law.