1. ' SALMAN HAMID, J. Without touching merits of the case, applicants Hafiz Ahmed Imdad, Hayat and Muhammad Moosa were admitted to interim pre-arrest bail on 23-6-2010, which was fixed today for confirmation or otherwise.
2. ' This pre-arrest bail application moved under sections 498 and 498-A, Cr.P.C. Came up for hearing on 21-7-2010 and was adjourned for today at the request of the applicants' counsel, namely, Mr. Shahbaz Ali M. Brohi, on the ground that he could not reach Court on that day. Today,. Though Mr. Brohi is present in Court, but he again requests for adjournment on the ground that he wants to file some documents, which relate to the counter-case/counter-F.I.R., that was lodged by the applicants against the complainants of the present F.I.R. No,19 of 2010, without realizing that on 21- 7-2010 it was specifically ordered that if Mr.Brohi on the adjourned date i,e, today would not be able to argue the bail application, the same shall stand dismissed for non-prosecution. Despite insistence of this Court, Mr. Brohi did not argue the bail application and consistently requested for adjournment. This Court would have been justified in dismissing this bail application for non- prosecution as recorded earlier on 21-7-2010; however, in the interest of justice reserved the same for its disposal on merits after going through application on its own and without assistance of the learned counsel for the applicant.
3. ' As per the F.I.R., that was lodged by complainant, namely, Mushtaq Ali Abro on 4-4-2010, at about 2300 hours, who was one of the bodyguards of Babu Sarfraz Khan Jatoi that he along with other bodyguards, namely, Rahib Jatoi, Sadam Jatoi and Koural were sitting along with Babu Sarfraz Khan Jatoi at his farmhouse when around 2-00 p.m., the applicants/ accused, namely, Hafiz Ahmed, Imdad, Hayat and Muhammad Moosa Brohi, came there, armed with Kalashnikovs and started firing upon the complainant party after challenging Baboo Sarfraz that he should refrain from politics. Because of such firing of applicants/accused, complainant received firearm injury on his leg, and two goats and two sheep also died.
4. ' In the light of the above exposition of the incident, as reflected in the F.I.R., the grounds those were raised for consideration of this Court by learned counsel for the applicants were that there was inordinate and scandalous delay of more than 8-1/2 hours in lodging F.I.R. Without any plausible or satisfactory explanation and that the mala fide on the part of the, complainant was apparent inasmuch as that the complainant has arrayed all the members of one and the same family in the F.I.R. And that the injury caused to the complainant was on non-vital part of the body and, therefore, the ingredients of section 324, P.P.C. Were not applicable and if the accused would have intended to kill the complainant, they would have killed him when he was at their mercy by repeating fires on him. It was further mentioned in the grounds of pre-arrest bail that there was a counter-version of the case and that an F.I.R. Was lodged by Abdul Sattar Brohi at Arija Police Station against the complainant which was registered as Crime No,15/2010 at such Police Station and that date of both occurrences is the same, but the time of occurrence in the counter-F.I.R. Is 1- 00 p.m., whereas in the present F.I.R. Which is the subject-matter of the present pre-arrest bail application, is 2-00 p.m. And that the counter-F.I.R. Was registered one hour prior to the F.I.R. In hand and that in such F.I.R. Allegation against the complainant party of causing firearm grievous injuries to applicant Muhammad Moosa and causing butt blows to applicant Imdad and their relative Abdul Sattar Brohi, was specifically mentioned and, therefore, if the two F.I.Rs, are put in juxtaposition, it would transpire that the complainant of the present case has concocted the story in order to save and protect Babu Sarfraz Khan Jatoi and others in the counter-F.I.R, lodged by the applicants herein. It was further mentioned in the grounds of pre-arrest bail application that in a case of counter F.-I.R. The golden principle of law is that the trial Court can only determine who was the aggressor and who was aggressed upon after full-fledged trial and not at the interim stage and, therefore, in terms of the various pronouncements of the Hon'ble Supreme Court, parties shall be deemed to be treated on equal footings, when there are counter-versions of the same incident, at the time of deciding bail application. Lastly, in the grounds of pre-arrest bail it was mentioned that if bail can be granted after the arrest, then it can very well also be granted before arrest.
5. ' The record of the file would show that interim pre-arrest bail was granted to the applicants by the learned III-Additional Sessions Judge, Larkana 'on 8-4-2010, which, however, subsequently was not confirmed by the VII-Additional Sessions Judge, Larkana when it was heard by such Judge on 1-6- 2010.
6. ' The version of the complainant or the State Counsel did not come on record, as arguments on their behalf had not been heard, for the reasons mentioned above. However, from their conduct it was quite clear that they were vehemently opposing the grant of this pre-arrest bail application of the applicants, which also can be deduced from the order passed by the VII-Additional Sessions Judge, Larkana on 1-6-2010, wherein the learned counsel for the complainant with the assistance of the learned ADPP for the State argued that complainant received firearm injury due to firing of applicants. It was also argued that two goats and two sheep of complainant were also killed in the incident and that postmortem report of animals was available in police file. It was also argued that complainant who received bullet injury was hospitalized as certified by. M.L.O. In his final medical certificate issue on 12-4-2010. That complainant received serious injury, therefore, it cannot be said that complainant implicated the applicants with mala fide intention or ulterior motives. It was also argued that mere filing of counter cases was not a ground for bail as each case was to be appreciated on its own merits and, therefore, prayed that pre-arrest bail earlier granted to the applicants be recalled The pre-arrest bail order was recalled.
7. ' I was able to lay hands on the case of Mst. Shafiqan v. Hashim All and another, reported in 1972 SCM R 682, wherein the Hon'ble Supreme. Court of Pakistan in a murder case enlarged the accused on bail keeping in view the counter-version of the accused by applying the principle as to who was the aggressor and who was aggressed upon, wherein the Hon'ble Supreme Court of Pakistan observed that the High Court exercised the discretion vested in it properly inasmuch as that there was counter-version and it was yet to be seen as to who was the aggressor and whether the respondent has committed an offence punishable with death or transportation for life. Resultantly, the petition that was filed before the Hon'ble Supreme Court was dismissed and the order of the Lahore High Court was maintained.
8. ' In the case of Fazal Muhammad v. All Ahmad and 3 others, reported as 1976 SCM R 391, again the Hon'ble Supreme Court of Pakistan in a full bench judgment held that there was no infirmity in the order of the Lahore High Court when it enlarged accused on bail on grounds that there was prima facie probability that the counter-version was. Under the circumstances, it was not found fit by the Hon'ble Supreme Court to interfere with the findings of the Lahore High Court.
9. Bare perusal of the case would clearly show that there are counter-cases A viz., F.I.R. No,15 of 2010 and F.I.R.
10. No,19 of 2010 against each other of the same date, place and time and, therefore, it is yet to be seen as to who was aggressor and who was aggressed upon. Even otherwise, the story as narrated in the F.I.R. Is not free from doubts and is full of discrepancies inasmuch as it is not plausilile that despite indiscriminate firing from either side, which lasted for various minutes, that too with automatic weapons, only one person sustained injury and that too on non-vital part of the body i,e,, right leg and no other loss caused when firing remained, according to the circumstances as narrated in the F.I.R. Up to 3' to 4' level from the ground as the goats and sheep died of such firing and even the bodyguard received injury below belt on non-vital part of the body. It is also not clear that as to how many empties were recovered and recorded in the mashirnama. No damage to the property is mentioned in the F.I.R. All these create reasonable doubt together with the fact that there are counter F.I.Rs and/or counter-cases. Under the circumstances, interim pre-arrest bail granted to the applicants on 23-6-2010 is confirmed on same terms and conditions as mentioned therein.