' SHAHID ANWAR BAJWA, J.---F.I.R No, 190 of 2009 was registered at Police Station Daharki on 10-7- 2009 at 2030 hours for an incident alleged to have taken place at 8-722009 at 1000 hours. Arena of conflict was stated by the complainant to be a place near his house. Complainant stated that the opposite party wanted a way for Watercourse through their lands which was not acceptable to the complainant party. On the fateful day a group of five persons, all real brothers, armed with lathies came. Present applicant gave a lalkara and fight ensued. Present applicant gave a lathi blow to one Umer Bux on his head and the other accused similarly gave lathi blows to the others on head as well as on other parts of body. As the villagers approached upon commotion, the accused persons escaped. The complainant stated that he saw that his uncle Umer Bux has fallen down on the ground and was unconscious. Umer Bux and other were shifted to Daharki hospital from where Timer Bux was referred to Rahimvar Khan. Hospital where he succumbed to his injuries. F.I.R was lodged thereafter.
2. Counter F.I.R bearing No,189 of 2009 was registered at that Police Station on 10-7-2009 at 1300 hours. The cause being dispute over way of Water-course was stated. Erna was stated to be practically the same. It was also stated that fight ensued. It was also stated that lathi blows were received and certain persons were injured.
3. Learned counsel for the applicant made the following submissions:---
(a) There is delay of two days in lodging the F.I.R.
(b) It was not a case of a pre-planned murder.
(c) Seven persons of the present applicant's party have also been injured.
(d) The F.I.R was lodged by the applicant party was earlier in time.
4. Learned counsel relied upon Shah Ali and 2 others v. The State, 1976 PCr.LJ 1021 on the point that delay in lodging F.I.R is fatal to the case of prosecution. Learned counsel relied upon Akhtar Zaman v. The State, 1999 PCr.LJ 1337 and Zafar Iqbal v. The State, 1999 PCr.LJ 1840, in support of his contention that if there are two versions, bail should be granted. Learned counsel relied upon Muhammad Shalizad Siddique v. The State PLD 2009 SC 58 in support of his contention that since the opposite party which was engaged in the same fight has been granted bail, it should be granted to the present applicant also. Lastly learned counsel relied upon Muhammad Ansar v. The State 2004 PCr.LJ 1035 to contend that no lethal weapon was used and it was not a pre-planned act.
5. Mr. Qurban Ali Malano learned counsel for the complainant stated that it is not a case of counter version. One person of one party has died while the other party has merely claimed certain injuries.
He submitted that specific role has been attributed to the applicant in the F.I.R. Learned Assistant Prosecutor-General supported the contention of Mr. Malano and submitted that delay in lodging of the F.I.R is explained in the F.I.R itself. He further submits that lathi has been recovered. He relied upon Arif Din v. Amil Khan and others 2005 SCM R 1402 to contend that mere existence of counter version is not a ground sufficient for grant of bail.
6. I have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar. First contention of learned counsel for the applicant was that although incident occurred on 8-7-2009 at 10-00 a.m., F.I.R. Was lodged on 10- 7-2009 at 2030 hours and this delay, according to the learned counsel is fatal to the case of prosecution. Learned counsel relied upon Shah Ali's case (Supra). Allegation in this case was that the applicants armed with hatchets and lathies attacked the complainant party and caused them injuries, two of which were found to be grievous. Other side also lodged counter F.I.R in which the applicant's party was claimed as the aggressor. F.I.R was lodged after twelve days and this delay was considered as one of the factors for grant of bail. In the present case it is no doubt that F.I.R was lodged after a period of more than two days but injured Umer Bux was first taken to Daharki Hospital and from where he was referred to Rahimyar Khan Hospital and it was at Rahimyar Khan Hospital that injured Umer Bux succumbed to his injuries. Consequently F.I.R was lodged after his death. Therefore this delay in lodging of the F.I.R is reasonable, plausible and explainable and A therefore could not be said to be creating a halo of doubt around the case of the prosecution.
7. Second contention of the learned counsel for the applicant was that it is a case of two versions.
Learned counsel relied upon Akhtar Zaman's case (Supra). F.I.R was lodged for a double murder with allegation that on the eventful morning the two deceased were busy in their vegetable fields when the accused persons duly armed with Kalashnikov came, fired from close range and murdered the two persons. Motive was said to be a proverbial one i.e, a woman. Counter version was also lodged by the other party who also took two dead bodies with them to the Police station alleging that the other party had murdered those two persons. It was observed by a Division Bench of Peshawar High Court that time of occurrence, scene of occurrence and motive were the same in two cases. Two persons of each side had lost their lives and none of the parties had accounted for loss of lives of persons of other party. It was consequently held to be a case of further inquiry. In Zafar Iqbal's case (Supra) the version as narrated in the F.I.R by complainant was that on the fateful day while he along with his family members was sitting in their house, the armed persons entered their house, lalkara was raised, fire was opened and persons were injured, one of whom subsequently died in hospital. Counter version was similarly recorded. While relying upon Shoaib Mehmood Butt v. Iftikhar Haq and others 1996 SCM R 1845 bail was granted. On the other hand learned Assistant Prosecutor-General relied upon Arif Din's case (Supra) it was claimed in the first F.I.R that when the complainant was present in a bazaar applicant Arif Din and his two brothers duly armed with fire arms opened fire and seriously injured persons who subsequently expired. On the other hand Arif Din also lodged an F.I.R prior in time about the same occurrence but his allegation was that the other party opened fire which hit the complainant at the abdomen at two places. Shoaib Mehmoob Butt's case (Supra) was relied upon and it was claimed to be a case of cross-version. The High Court had dismissed the bail application and the Hon'ble Supreme Court observed as under:-- "Here in the instant case, too, the learned High Court has made a tentative assessment on the basis of two important circumstances. First that, due to acquittal of the complainant party in another murder case, it was the present accused party which had he to retaliate and not the party which already stood acquitted. Secondly, that the assailants of the F.I.R. Lodged by the present petitioner, are fully armed with semiautomatic as well as fully automatic weapons. That in spite of the fact that all the three opened fire at the petitioner, they could cause only a simple injury on the stomach.. At least such assessm ent could tentatively be made in view of the given circumstances.
It is strongly argued by the learned counsel for the complainant as well as by the learned State counsel that the possibility cannot be ruled out that the injury caused to the petitioner was either self-inflicted or self-sustained. The learned counsel also added that despite grant of bail in the cross-case to the present complainant party, no cancellation of bail has, at all, been moved by the present petitioner"
8. In the present case, as stated above, the cause is the same; arena is the same; the two feuding parties are the same. Both the parties were similarly armed i.e, with lathies. Both the parties injured each other. Umer Bux received injury on his head of which he subsequently expired. On the other hand medical certificate of Abdul Qadir has been placed on record by learned counsel for the applicant which states the injuries, besides others, included lacerated wound 6.5 cm x 1.5 cm bone exposed on mid parietal region; and on Mashooque lacerated wound 4 c.m x .5 c.m bone not exposed on right parietal region of skull; on Budhal lacerated wound 5 c.m x 1 c.m bone exposed on right parietal region of skull and on Muhammad Alim lacerated wound 5.5 c.m x 1.5 c.m bone exposed on mid occipital region of skull. There is similar injury on one Zafar. Therefore it appears that in the fight both the parties took it upon themselves to batter as hard as they could heads of persons of other party. Both the F.I.Rs, were registered in the day after. Both are silent as to injuries to the other side. In this set of circumstances, it would be ultimately for the trial Court to determine as to who was the aggressor. It is therefore a case of two versions. Mr. Malano's contention was that it is not a case of two versions because on one side one person had lost his life while the other side had been luckier and has only lacerations on the skull. In a criminal case it is the intention which is to be seen and the circumstances which are to be evaluated and to the parties, at least upon it appears, tried their best to crack as many skull's as they could.
9. As stated above who is the aggressor is yet to be determined. This certainly is therefore a case of two versions. Moreover, bail has already been granted to one party and learned counsel for the applicant is quite right in relying upon Muhammad Shahzad Siddiqui case (supra) where the Hon'ble Supreme Court has held that it is settled principle of law that if one party is granted bail other party is entitled to the same relief in case of counter versions. In this case again the Hon'ble Supreme Court derived sustenance from its earlier celebrated judgment in Shoaib Mehmood's case.
10. Result of the above discussion is that this bail application is allowed. Let the applicant be admitted to bail for a sum of Rs,200,000 (Rupees Two Hundred Thousand Only) with P.R. Bond and one surety in the like amount to the satisfaction of the trial Court.