1. SHAHID ANWAR BAJWA, J.---F.I.R. No. 45 of 2008 was recorded at Police Station, Faiz Ganj, District Khairpur on 19-3-2008 at 10-00 a.m. For an incident alleged to have occurred on the same day at 7-20 a.m. The complainant stated that he is an agriculturalist and part of his land was given on tenancy to a tenant. On the day of incident, he stated that it was his turn for water and early morning, he went to the fields along with his family members and tenant. When he reached there, he found a group of seven persons including the present applicant who was stated to have been armed with a Rifle. Other persons were stated also to be duly armed. When the complainant reached the spot, the accused party told them that they have stopped their water. One Bashir Ahmed instigated the armed persons. On his instigation Kaleem Hussain is alleged to have fired with his K.K on Talib Hussain and present applicant/accused is alleged to have fired with his Rifle on Allah Rakhio Bugti. Co-accused Nazir Ahmed is alleged to have fired with his gun on Muhammad Abad and Accused Mattal Mari is alleged to have fired with his Rifle on Muhammad Jaffar. Allah Rakhio and Talib Hussain died on the spot after having received injuries on their heads and Muhammad Abad received injuries on left side of his shoulder and buttock and Muhammad Jaffar received injury of left side under the shoulder and left, leg near the knee. F.I.R. Was duly recorded. A counter F.I.R. As recorded at the same Police Station at 12 noon. Time of the incident is stated to be the same. The incident is stated in the same details but it is alleged that it was Muhammad Ramzan's party which was aggressor and it was also alleged that Muhammad Ramzan's party resorted to firing, as a result of which a Jeep got burnt. It was also stated that after the Jeep was stopped before it was burnt, a party of the present applicant took shelter in the fields. It was alleged that the party of Muhammad Ramzan resorted to indiscriminate firing, as a consequence of which, the present applicant received 21 injuries and Mattal Mari received 18 injuries. All the injuries were by gun shot.
2. Bail Applicant of the present applicant was rejected by the trial Court, vide order dated 12th September, 2009. Learned Counsel for the applicant submitted that Muhammad Abad, Khadim Hussain and Muhammad Jaffar were granted bail by this Court, vide order dated 5-6-2009.
3. Operative part of the order reads as under:- "In contrary to it, 2007 PCr.LJ 1056 and 2002 SCMR 1370 have been referred observing that in facts and circumstances of the case provisions of section 342, P.P.C. Was prima facie attractive, as such bail plea was hit by prohibition contained in section 497, Cr.P.C. But as observed in 2004 SCMR 841 that in case of free fight in between the parties, it was yet to be determined as to who was aggressor- and thus matter squarely fell within the ambit of further inquiry. In the present case, members of both parties i.e. Of F.I.Rs. Nos. 45 of 2008 and 46 of 2008 received injuries one person of applicant party namely Allah Rakhio was murdered, hence it is yet to be determined as to who was the main aggressor. Further, complainant's brother Kalim who is said to have received injuries is also an absconding accused in Crime No. 45 of 2008."
4. This order was challenged in the Supreme Court and Criminal Petition was dismissed by the Supreme Court, vide order dated 2nd December, 2009. The operative part of which reads as under:-- "Making reference to the relevant facts of the case and contents of the F.I.R., submission of Mr. Ghulam Qadir Jatoi, learned AOR. Is that bail granting order is not based on proper appreciation of relevant facts of the case. He, however, did not dispute that it is a case of two counter versions, as per the facts stated in the first F.I.R. Lodged by one Muhammad Ramzan and the other lodged by present petitioner, narrating two different stories of the same occurrence.
5. When confronted with the question of limitation, the criminal petition having been filed 22 days after the prescribed period of limitation for filing such petition against the impugned order, learned counsel has no plausible explanation to offer in this regard. Even in the application for condonation of delay moved under Order XXXIII Rule 6 of the Supreme Court Rules, 1980, which is accompanied with this criminal petition, no plausible or sufficient cause has been disclosed by the petitioner for not approaching this court within time."
6. Learned Counsel further submitted that three co-accused, being Nazir, Bashir and Mattal Mari were ranted bail by this Court, vide order dated 9-12-2008. The relevant part of the order reads as under:-- "Since the accused of Crime No. 46 of 2008 namely Muhammadabad, Khadim Hussain and Muhammad Jaffar have been granted bail by this court vide order dated 1-6-2009 and in the present F.I.R. Co-accused Rahib has been granted bail after arrest by this Court vide order dated 26-8-2009 and case of the present applicants is also same nature, therefore, on the ground of principle of consistency the applicants also deserve the concession of bail. The latest case law of honourable Supreme Court is that mainly bail has been granted to the accused in counter cases as the guilt is to be determined after recording of evidence of witnesses, therefore, I allow this bail application. The applicants shall be released on bail subject to furnishing solvent surety in the sum of Rs. 5,00,000 (Rupees Five Lac) each and P.R bond in the like amount to the satisfaction of Trial Court."
7. Learned counsel submitted that in presence of the two orders of this Court and more so in presence of the orders of the Supreme Court, the present applicant is entitled to the facility of bail.
8. Learned counsel relied upon Ali Shaharyar v. The State (2008 SCMR 1448), Muhammad Shahzad Sadiq v. The State and another (PLD 2009 SC 58), Noor Muhammad v. The State (2009 SCMR 324) and Sultan v. The State (2009 MLD 796) to contend that in case of counter version, bail should be allowed because it is yet to be determined as to which party is the aggressor. Learned Counsel further submitted that statement under section 161, Cr.P.C. Was recorded 5 days of recording of the F.I.R. Learned Counsel relied upon Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Muhammad Hassan alias Hussaini v. The State (PLD 1995 Lahore 229) and Sooba Khan v. Muhammad Ajmal and 2 others (2006 SCMR 66) for his contention that if there is a delay in recording statement under section 161, Cr.P,C. It casts doubts on the story of Prosecution. Learned counsel further submitted that the present applicant has been acquitted for an offence under section 13(d) of the Arms Ordinance, 1965 in respect of alleged weapon of offence allegedly recovered at the pointation of the present applicant.
9. Mr. Mushtaque Hussain Shah, learned counsel for the complainant submitted that his F.I.R. Was registered promptly and in time and it was two hours after registration of that F.I.R. That the present Applicant in order to save himself got registered second F.I.R. He further submitted that there are two persons who are alleged to have fired fatal shots, one killing Talib and other killing Allah Rakhio.
10. These shots were respectively fired by Kaleem and the present Applicant. Kaleem is real brother of the present applicant and is absconder till today. Learned Counsel further submitted that if two versions are put together, the presence of the present Applicant at the place of incident is admitted but surprisingly, F.I.R. Of the present Applicant has remained absolutely silent about two persons who lost their lives as well as other two who received serious injuries. As far as bail allowed by this Court to the co-accused persons is concerned, the learned Counsel submitted that those co-accused have not been alleged to have fired upon the deceased and are merely alleged to have caused injuries to the injured persons. Learned Counsel further submitted that there has not been any delay in lodging of F.I.R. And delay in recording statement under section 161, Cr.P.C. Does not in the circumstances throw mud of material any material doubt on story of the prosecution. As far as acquittal under section 13(d), Arms Ordinance, 1965 is concerned, learned Counsel produced a copy of the order dated 23-2-2010 passed by this Court in Acquittal Appeals .Nos. 05 and 06 of 2009 by which judgment of acquittal has been set aside and the case has been remanded to the trial Court with a direction for re-assessment of the evidence in each case and by passing judgment by discussing the same separately in accordance with the law. Learned Counsel further submitted that charge was framed on 3-2-2010 and evidence of author of F.I.R. And Medical Officer was duly recorded. Thereafter, the present applicant's side sought adjournments and finally filed Cr. Transfer Applications. First Transfer Application was dismissed and second Transfer Application was disposed of by this court, vide order dated 26-4-2010 and the trial Court was directed to proceed with the matter expeditiously and report progress on monthly basis to this court through MIT of this Court. Learned Counsel, therefore, submitted that it is the applicant's side who is responsible for delay in the trial. He relied on Nasir Muhammad Wassan another v. The State (1992 SCMR 501) to contend that where specific role is assigned for causing death, mere registration of counter F.I.R. Could not be a ground for grant of concession of bail. In the circumstances, learned counsel further relied upon Inayat v. The State (2002 SCMR 129). Learned DPG supported the arguments of learned Counsel for the complainant.
11. I have considered the submissions made by the learned counsel.
12. I have also gone through the record as well as the case law cited at the bar.
13. It is true that Nazir, Bashir and Mattal Mari were granted bail by this court, vide order dated 2-12- 2009. In the F.I.R., role alleged against Bashir is that of instigation and role, alleged against Nazir and Mattal Mari is of firing at two injured persons. The role alleged against the present Applicant and his brother/absconder Kaleem is of firing at Talib and Allah Rakhio respectively and causing their death. The injury to them was on their heads, the most vital part of the body. Hence the role alleged against the present applicant is materially and vastly different from the role attributed to and alleged against Nazir, Bashir and Mattal Mari. Therefore, on the principle of consistency, the order dated 9-12-2008, does not help the case of the present applicant.
14. For the same reason, bail granted to the three persons belonging to the party of the complainant in the case against present applicant is on a different footing altogether. The maximum that is alleged against the opposite party by the present applicant is that they fired at the Jeep, the Jeep was stopped, they sought shelter in the crops, the Jeep got burnt because of firing and gun shot wounds were received by the present applicant and one other person. It may not be out of place to mention that in the F.I.R. On behalf of party of the present applicant, it is specifically alleged that there was a gentleman with a K.K and there were two gentlemen armed with Rifles and two other gentlemen are alleged to have armed with guns. No injury by K.K or Rifle is, claimed. Ip the order passed by the Supreme Court, the Supreme Court noted only contention of Mr. Ghulam Qadir Jatoi but dismissed the Criminal Petition on the ground of limitation. Therefore, even that order by this Court does not help the case of present applicant.
15. Main stress by the learned counsel for the applicant was that there were two versions, and therefore, it is a case of counter version. Learned counsel firstly relied bn Ali Shaharyar's case (supra). Facts of this case were that F.I.R. Was registered at a Police, Station to the effect that the petitioner and 11 others armed with deadly weapons in furtherance of their common object attacked the complainant party and killed Shabir Ali. Initially, pre-arrest bail was allowed twice but both the applications were dismissed in default. After arrest bail was dismissed by the trial Court.
16. However, the High Court allowed the Bail Application and the matter was taken up to the Supreme Court for cancellation and such Application was allowed by the Supreme Court. Thereafter, fresh Bail Application was filed in the trial Court which was dismissed. Criminal Miscellaneous Application met the same fate and then Petition was filed in the Supreme Court. The petitioner primarily relied upon statement of Prosecution witness one Muhammad Boota, who stated that injuries attributed to the petitioner were caused by him and it was contended by learned counsel that the role attributed to the petitioner became doubtful. It was this fact coupled with existence of counter version that persuaded the Supreme Court to allow the Bail Application. The distinguishing feature is self evidence.
17. In Muhammad Shahzad Sadiq's case (supra), the petitioner was charged for firing a shot with repeater which hit one Naveed on his right foot and one pallet hit small finger of right hand of another person. There was no allegation of direct firing at the head of the deceased and killing him; therefore, Muhammad Shahzad Sadiq's case, if at all, is more relevant to the case of Nazir, Bashir and Mattal Mari who have already been granted bail and is distinguishable to the case of the present applicant. In Noor Muhammad's case, supra, what prevailed with the court was that it was held that it was not a case of premeditated murder. It was the case where the tempers flared after initial altercation and in that streamy atmosphere of flaming passions firing took place. Last case relied upon by the learned counsel for the applicant was Sultan's case (supra). The report of the case is not sufficiently detailed enough to come to the conclusion as to what were the roles respectively alleged by the parties against each other.
18. On the other hand, Mr. Shah relied upon Nasir Muhammad Wassan's case (supra). On a dispute relating to land, it was alleged that the defendant party attacked the complainant party resulting in death of two brothers. One death was allegedly caused by gun and other by hatchet. Counter F.I.R. Was lodged by the defendant party for an offence under sections 307, P.P.C. And 13(d), Arms Ordinance, 1965 and it was alleged that hatchet blows have been caused to the defendant party. It was in this background of fact that the Supreme Court observed as under:-- "Be that as it may, the fact remains that specific role has been assigned to the petitioners for causing death of two persons. The meaning of the term 'further enquiry' as used in section 497(2), P.P.C. Was explained in Iqbal Hussain's case (supra) as follows:-- "It may straightaway be observed that this court has in a number of cases interpreted subsection
(2) of section 497, Cr.P.C, which, with respect, has not been correctly understood by the learned Judge inthe High Court nor has it been properly applied in this case. While he thought that it was a case of further inquiry which element, as has been observed number of times in many cases, would be present in almost every case of this type. The main consideration on which the accused becomes entitled to bail under the said subsection is a finding, though prima facie, by the police or by the Court in respect of the merits of the case. The learned Judge in this case avoided rendering such prima facie opinion on merits as is mentioned in subsection (2) of section 497, Cr.P.C. And relied only on the condition of further inquiry. This approach is not warranted by law. Hence, the case not being covered by subsection (2) of section 497, Cr.P.C, the respondent was not entitled to bail thereunder as of right."
19. Above reference of the case law leads me to the conclusion that this is not a situation here where it is a simple case of counter version. Two persons of one party have been killed by firing direct shots on their heads and yet another two have been seriously injured. Counter version is of burning of a Jeep and causing of gun shot wounds in presence of the fact that it was alleged in the counter version that the party was armed with K.K and Rifles. At the same time, there is too much of discredence itself between the nature of injuries and when the two versions are put in juxtaposition along with the fact that other accused, being real brother of the present applicant is still absconder, I do not think that the present applicant is entitled to the concession of bail on the ground of mere existence of another F.I.R. A clear role in murders has been alleged against him.
20. As far as contention of the learned counsel that there was delay in recording statement under section 161, Cr.P.C. Is concerned, three facts cannot be lost sight of in this case. Firstly, F.I.R. Was promptly lodged. Secondly, the counter version clearly establishes presence of the present applicant at the arena and thirdly, two persons died and two others received injuries. In the .Presence of three facts, mere delay in recording statement under section 161, Cr.P.C. By Police, in my opinion, would not cause such a grave doubt on the story of prosecution so as to entitle the present applicant to the facility of bail.
21. For the above reasons, this Bail Application is dismissed. Needless to observe that while deciding guilt or innocence of persons standing trial before it, the trial Court shall not be, in any manner whatsoever, influenced by any of the observations made above.