1. ' SHAHID ANWAR BAJWA, J.--- F.I.R. No. 173 of 2010 was recorded at P.S., Daharki on 10-6-2010 at 4-00 p.m. For an incident alleged to have taken place nine and a half hours earlier. Complainant stated that there was a longstanding dispute between him and applicant No. 7 over landed property. On the material morning when complainant, his brother, cousin and nephew were standing on their lands, a group of 27 persons including all the present seven applicants came there. Applicant No. 7 is alleged to have given proverbial Hakal and, thereafter, applicants Nos. 1 and 6 are alleged to have given blows to head, right hand and back of the complainant. Applicant No. 2 and co- accused Pehlwan are alleged to have caused lathi blows to Ali Nawaz. Applicants Nos.3 and 4 are alleged to have caused lathi blows to Riaz and applicant No. 5 and co-accused Mujahid are alleged to have given lathi blows to Faqir Muhammad. Faqir Muhammad subsequently died while others received various injuries.
2. ' Learned counsel for the applicants submitted that after pre-arrest bail was granted to the applicants, they have been regularly attending the trial Court and there is no allegation of misuse of concession of bail by any of the applicants. Learned counsel submitted that although the incident is alleged to have occurred in a village land but no villager has been cited as a witness.
3. Learned counsel next submitted that although it is alleged that some of the applicants were armed with guns but no gun is alleged to have been used for causing any injury and, therefore, it cannot be said that the applicants had any intention to commit murder. In any case, learned counsel submitted that common intention is always a question of further inquiry. In respect of injury, caused to Faqir Muhammad, learned counsel submitted that in the F.I.R., it is stated that two persons, Mujahid and applicant Ashique gave lathi blows to Faqir Muhammad but medical report indicates that there was only one injury caused. To Faqir Muhammad. He submitted that Mujahid has been granted bail by a Single Judge of this Court vide order dated 2-9-2010 in Criminal Bail Application No.701 of 2010: Hafizullah alias Mujahid and another v. The State. Learned counsel submitted that co-accused Pehlwan has also been granted bail. Learned counsel relied upon Muhammad Ramzan v. Zafarullah, 1986 SCM R 1380 and Jaffar and others v. The State, 1980 SCM R 784.
4. ' Mr. Alam Sher Bozdar, learned counsel for complainant, submitted that names of the applicants are specifically mentioned in F.I.R. And clear role has been assigned to them. He submitted that three persons have been injured and one has died and in view of such gruesome nature of occurrence, the applicants are not entitled to bail. Learned counsel relied upon Mst. Qidrat Bibi v.
5. Mohammad Iqbal and another, 2003 SCM R 68 and Haji Muhammad Zaman v. The State, 2011 M LD 93.
6. ' Mr. Zulfiqar Ali Jatoi, learned D.P.G., submitted that injured Ali Nawaz received two injuries being: (1) lacerated wound measuring 4.00 cm x 0.3 cm, bone not exposed at light occipito temporal region of skull; (2) swelling 3.00 cm x 3.00 cm at medial helf of dorsum of right hand. Injured Nazir received four injuries being: (1) lacerated wound measuring 5.5 cm x 2.00 cm, bone exposed over left panetal region of skull; (2) swelling 5.00 cm x 5.00 cm over dorsum of right hand; (3) bruise measuring 6.00- cm x 2.5 cm, over right scapular region; (4) bruise measuring 5.00 cm x 2.5 cm, over just below injury No. 3; (5) bruise measuring 5.00 cm x 2.5 cm, over left scapular region. Injured Riaz Ahmed received three injuries being: (1) lacerated wound measuring 2.00 cm x 0.5 cm, over mid parietal region of skull; (2) bruise measuring 2.00 x 1.00 cm, over right shoulder; (3) bruise measuring 3.00 cm x 1.00, over back of chest. Injuries were classified as: in the case of Ali. Nawaz, Shajjah-i-Khafifah and other hurts; in the case of Nazir, Shajjah-iMudihah, Jurh Ghayr-jaifah badiah and other hurts; in the case of Riaz Ahmed, Shajjah-i-Khafifah and other hurts. Learned counsel relied upon Haji Gulu Khan v. Gul Daraz Khan and another, 1995 SCM R 1765 and submitted that it is not a case of further inquiry.
7. ' I have considered submissions made by the learned counsel and have also gone through the record.
8. As far as applicant No. 3, Ashique, is concerned he is alleged to have caused injury to deceased Faqir Muhammad. In the F.I.R., it is stated that Mujahid and Ashique caused injuries to Faqir Muhammad by attacking his head with lathies but postmortem report indicates that there was only one injury. Mujahid was granted bail by a Single Bench of this Court vide order dated 20-9- 2010 and it was observed by the learned Judge as under:-- "Admittedly, the applicant No. 1 along with one Ashique is alleged to have caused lathi injuries on the head of deceased Faqir Muhammad but expert's opinion has disclosed only one simple injury on the head of deceased and it is yet to be determined that who caused this only injury. The alleged injury was also simple in nature and it still requires probe that whether that simple injury was sufficient to cause death of deceased or his death was due to failure of cardio respiratory system. So also the applicant Pehlwan is also alleged to have caused simple injury to P.W. Ali Nawaz. In such circumstances, the matter requires further probe that whether the applicants had intention to cause death of deceased Faqir Muhammad or P.W., prima facie the ingredients of intention for causing death are lacking.In the instant case.
9. ' Accordingly, this bail plea is accepted. The applicants shall be released on bail on furnishing their sureties each in the sum of Rs.200,000 (Two Lac) only and P.R bond in the like amount to the satisfaction of the learned trial Court."
10. Through the same application, bail was allowed to co-accused Pehlwan, who is alleged to have caused injuries to Ali Nawaz along with applicant ' No. 2; therefore, on the principle of consistency, applicants Nos. 2 and 5 are entitled to bail.
11. ' Learned counsel relied upon Muhammad Ramzan's case (supra). In the reported case, bail before arrest was allowed because majority of the applicants was not attributed any single role insofar as injuries of the victims were concerned. Certain co-accused had been granted bail and such order had been challenged. In respect of pre-arrest bail, it was observed by the Supreme Court as under:-- "No useful purpose would be served if the bail of Zafar Ullah Khan respondent is cancelled on any technical ground because after arrest he would again be allowed bail on the ground that similarly placed other accused are already on bail".
12. ' Learned counsel also relied upon Jaffar's case (supra) in which deceased received five injuries but no reliance can be placed on the reported Judgment because it was a case decided on the basis of concession by the Advocate-General. In Haj.i Gulu Khan's case (supra) the facts were that complainant, Ater getting information from one Saleh Muhammad, who, in turn, got information from another person and that person had gone with the deceased, alleged that deceased was murdered by the respondents and Misal Khan and another absconded by firing from their pistols.
13. Supreme Court laid down as under:-- "It is, therefore, quite clear that a case would only fall within the scope of further inquiry under section 497(2), Cr.P.C. If the Court reaches the conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years. In the absence of a finding to this effect, there will be no occasion for the Court to hold that the case is one of further inquiry. It may be mentioned here that in order to ascertain that no reasonable ground exists to believe that the accused is guilty of a non-bailable offence or offence punishable with death, life imprisonment or imprisonment for 10 years, the Court, if the case is still at the stage of investigation will make a tentative assessm ent of the allegations against the accused person in the light of the material so far collected by the investigation agency to connect him with the offence. In case the trial has commenced, the Court taking cognizance of the case may, in addition to the material collected by the police, also take into consideration the evidence produced before it. In the case before me, respondent No.1 is specifically charged with the firing from his arms along with the absconding accused on the deceased, both in the F.I.R. As well as in the statements of witnesses recorded under sections 161 and 164, Cr.P.C. The fact that in the F.I.R. And in the statement of prosecution witnesses there is only general allegation of firing by the respondent No.1 and the co- accused on the deceased and no specific injury on the deceased is attributed to respondent No.1, would not make the case against him, one of further inquiry."
14. ' In Qudrat Bibi's case (supra) the allegation was of causing a hatchet injury on the neck of the deceased. The case is, therefore, clearly distinguishable. In Muhammad Zaman's (case) accused were directly charged for committing murder of deceased. Case is again clearly distinguishable. In the present case, the only applicant, who is alleged to have caused injury to the deceased Faqir Mohammad, is Ashique, applicant No. 5 and I have already observed above that on the principle of consistency, he is, entitled to bail. Other applicants are riot alleged to have caused any injury to the deceased. Moreover, although the applicants were armed with firearms but no firearm was ID used for causing any injury to any person.
15. Applicant No. 7 is called absent; he has sent an application for excusing his absence because he had to go to Multan for condolence purpose. Such excuse is, certainly, not acceptable.
16. Result of the above discussion is that bail application is dismissed in respect of applicant No.
7. Let notice be issued to the surety of applicant No.
7. This bail application is allowed in respect of applicants Nos. 1 to 6 and bail, already granted to applicants Nos. 1 to 6 vide order dated 8-7-2010, is confirmed on the same terms .