' SALMAN HAMID, J.---An F.I.R. Bearing No,35 of 2007 was lodged by one Jumo Khan son of Mohammad Saleh (complainant) under sections 302, 324, 337-A(i), 337-F(i), 337 H(ii) 147, 149, P.P.C.
At Police Station Waris Dino Machhi on 2-11-2007, against 12 accused persons named therein.
2. The complaint in the F.I.R. Against the accused was that on 2-11-2007 around 0900 hours when the complainant and his cousins Abdul Rasheed and Mashooq Ali were making fence/hedge on their plot, the accused persons armed with different kinds of weapons and hatchets, came and claimed that it is their plot and that the fence/hedge be not raised. This resulted in exchange of harsh words and soon the same ' turned into severe fight with the result that firing took place and also hatchet blows were exchanged and injuries were sustained on either side. As per the F.I.R., the complainant and rest of the injured went to hospital, got first aid and thereafter went home.
However, the complainant after receiving first aid, lodged the above F.I.R. Against the accused persons named therein.
3. The exact role in terms of the F.I.R. Attributed to the present applicant is only to the extent that he was armed with a lathi and during quarrel one Mumtaz Ali from the side of the complainant was hit by applicant's lathi on left side of the shoulder. This is all which is mentioned against the present accused.
4. On the basis of the above, the learned counsel for the applicant raised various grounds for bail which among others included that all the accused who were nominated in the F.I.R. Either have been granted bail by the trial Court or have been let off for want of evidence; that no specific role has been attributed by the complainant in the F.I.R.; that the fight between the complainant party and the accused mentioned in the F.I.R. Errupted instantaneously without any plan or premeditated minds; that the accused nominated in the F.I.R. Having been enlarged on bail, following the rule of consistency and also keeping in view the fact that the role attributed in the F.I.R. To the applicant is to the extent of causing a lathi blow on the shoulder of Mumtaz Ali, was entitled to bail and that he remained away from the case for a long period of time, under the facts and circumstances of the case was not of much significance or was not fatal and that in fact it is the complainant who were the aggressors and the accused party and/or the applicant was aggressed upon and that because of the aggression of the complainant party, F.I.R. No,34 of 2007 was lodged against the complainant party under sections 302, 324, 148, 149, 337-A(i), F(i) which was prior in time than the F.I.R. Of the complainant, as evident from the F.I.R. Number itself 05/2007). In support of his contentions, the learned counsel relied upon the case of Zainul Abdin v. The State (2010 PCr.LJ 307),
(2) Mitho Pitafi v. The State (2009 SCM R 299) and the case of Ali Nawaz v. The State (1995 PCr.LJ 1316).
5. Mr. Dhamraho, appearing on behalf of the State, opposed the application on the sole ground that since the applicant remained absconding, he is not entitled to bail and in support of his contention he relied upon the case of Shehar Ali alias Shehri v. The State (1998 SCM R 190) and the case of Awal Gul v. Zawwar Khan and another (PLD 1985 SC 402).
6. Heard arguments, perused the record and the case law.
7. The narration of F.I.R. Would clearly show that the fighting and the exchange of hatchet and lathi blows and exchange of firearms was a result of quarrel/arguments which =took place on the land, ownership whereof was claimed by either side. It was because of this quarrel that the injuries were sustained on either side. There is available on record, the F.I.R. No,34 of 2007 lodged from the side of the accused which is prior in time and relates to the same incident which is also a subject matter of the present F.I.R. (35 of 2007). Under the circumstances, prima facie there is a case of counter F.I.Rs, It is also a matter of record that out of 12 persons who were nominated in the F.I.R., four were let off for want of evidence and rest have been enlarged on bail. The bail to the present applicant was refused only on the ground that he was absconding. The other grounds which were available to the applicant, which according to me were overwhelming for the purpose of bail were not considered at all by the trial Court.
8. According to the contents of the F.I.R., the only role assigned to the present applicant is that during the fight one Mumtaz Ali received applicant's lathi blow on his shoulder. Nothing else is alleged against him. Under the circumstances, since the injury to Mumtaz Ali that was allegedly caused at the hands of the applicant, is minor which does not fall within the meaning of prohibitory clause of section 497, Cr.P.C. In my opinion was entitled to bail as a matter of right which was denied. Under the circumstances, the two cases cited by the learned counsel for the State are not applicable. In both the cases i,e, of Awal Gul and that of Shehar Ali alias Shehri, the honourable Supreme Court of Pakistan held that abscondence disentitles the person to the concession of bail notwithstanding the merits of the case keeping in juxtaposition, the principle that such conduct of the accused thwarts the investigation in which valuable evidence, like recoveries etc, is simply lost or is made impossible to be collected because of the absconding of accused. However, in the present case no evidence and/or its collection, when it comes to the accused/applicant was required inasmuch as that according to complainant's own showing the only role assigned to the applicant is B that he caused lathi blow on the shoulder of one Mumtaz Ali and nothing beyond that.
9. There is yet another aspect of the case which is counter F.I.R. Since the F.I.R. Lodged by the accused party is prior in time and the F.I.R. Lodged by the complainant is later in time and that the F.I.Rs, are in respect of the same incident, it is yet to be ascertained as to who was the aggressor and who was aggressed upon. Looking at these aspects cumulatively, coupled with the fact that all the accused of F.I.R. Have been enlarged on bail under which circumstances the rule of consistency also comes into play, I am of the opinion that the applicant is entitled to bail and he is therefore, granted the same, subject to his furnishing surety in an amount of Rs,100,000 and P.R. Bond in the like amount to the satisfaction of trial Court.