ABDULLAH BALOCH, J.---This order disposes of Criminal Bail Application No,(S)115 of 2018 filed by the applicants (accused) Muhammad Khan and Hasul Khan both sons of Haji Muhammad Yousaf, seeking bail after arrest, in case FIR No,04 of 2018, Levies Thana Dhadar, under sections 302, 324 Q&D, 147, 148 and 149, P.P.C.
2. Facts of the case are that on 1st September, 2018, the complainant Saifal Khan, lodged the above FIR by nominating the applicants (accused) and others, stating therein that on the aforementioned date his son Zahoor Ahmed and other relative were working upon their land at the relevant time Qadir Bakhsh, Muhammad Khan, Bashir Ahmed, Hasul Khan and Ahmed being armed with weapons arrived with tractor and raised Lalkara to stop the ongoing work, on refusal the above mentioned persons assaulted Zahoor Ahmed and during assault Zahoor Ahmed fell down and one Qadir Bakhsh moved tractor and ruined down Zahoor Ahmed. who expired at the spot, while Muhammad Amin and Habibullah sustained injuries. It is further stated that due to firing of Hasul Khan, Bashir Ahmed sustained injuries and later on succumbed to his injuries.
3. After usual investigation, challan was submitted in the trial Court and the trial was commenced.
In the meantime, the applicants (accused) filed an application for grant of bail before the learned Additional Sessions Judge, Bhag at Dhadar (hereinafter referred as, "the trial Court"), but the same was rejected, vide order dated 26th September 2018. Whereafter, instant applications have been filed.
4. Learned counsel for accused-applicants contended that cross FIRs have been registered by both the parties against each other with regard to same incident, whereby two persons of the complainant party were murdered and others were injured, while one person was died and others injured from the side of accused party, thus it is yet to be ascertained which party is the aggressor and who is the victim or defender, which can only be ascertained after recording evidence, hence the case of applicants (accused) fall within the ambit of further inquiry; that number of accused persons were nominated in the FIR in order to drag the entire family of the accused party, which shows the mala fide of complainant part; that investigation in the matter has been completed and applicants (accused) were remanded to judicial custody, meaning thereby that they are not required for the purpose of investigation or probe, as such, the applicants (accused) are entitled for concession of bail.
5. Learned State Counsel stated that the applicants-accused are involved in heinous crime of dual murders and injuring the other persons, thus the alleged offences are not only non-bailable, but also carries punishment for death or life imprisonment; that sufficient incriminatory evidence is available on record connecting them with the commission of crime, thus they are not entitled for grant of bail.
6. Have heard the learned counsel for the parties and with their able assistance gone through the record. Perusal of record reveals cross-cases were registered by both the parties against each other with regard to the same incident. In the case in hand, the complainant Saifal Khan lodged FIR No,04/2018 at levies Station Dhadar District Kachi against the applicants (accused) and others for committing the dual murders and trying to take the place of others by inflicting serious injuries on their persons.
7. To the contrary, the accused Hasul Khan lodged FIR No,05/2018 against the complainant party for the same offences and at the said Levies Thana and even on the said date, whereby it is alleged against the complainant party that they launched attack upon them, which resulted into committing the murder of one person namely Bashir Ahmed and causing serious injuries to the others.
8. It is evident from the record that both the parties have levelled allegations of similar nature by claiming that the other party was the aggressor, who had launched the attack, but at bail stage it is very difficult to determine that which party is the aggressor and who are the victims, because it is a case of two different versions recorded in separate FIRs, while the place of occurrence in both the FIR is the same as well as both the FIRs were lodged on the said date and even murders and'attempt to murders were alleged in both the FIRs, Admittedly, it is a case of further inquiry, as the question of aggression or defender can only be determined at final stage after recording evidence. Reliance in this regard is placed on the case of Ghulam Abbas alias Gaman and others v.
The State, 2017 SCM R 1730, wherein it has been held that: "Though, the incident apparently taken place in front of the house of one of the parties, yet, it appears to be the result of a sudden fight. The possibility of absence of pre-meditation cannot be overruled. It is difficult to determine, at this stage, who was aggressor. It is a case of two versions and two FIRs,
3. In the above backdrop, both the learned counsel state that they have no objection if the accused of the other side behind bars are granted bail as long as the gesture is reciprocated."
Similar view has also been taken in the case of Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCM R 606, herein it has been held that:- "We have gone through both the FIRs and find that incident of both the FIRs took place on 27-9- 2009 at 2 a.m. The place of incident of both the cases has also been shown on footpath, corner of Street No,6-B Suleman Azad Road, New Kalri, Karachi. From this position it is prima facie clear that the incidents of both the FIRs took place on the same date, time and place. However, this point can be properly thrashed out at the time of trial but presently no exception can be taken with regard to the said position. We have also examined both the FIRs and find that no tentative findings could be given as to which party is aggressor therefore in the circumstances the High Court was justified in granting the bail to the respondents. The impugned order does not suffer from any illegality or irregularity as such it does not require any interference. The petition is dismissed. Leave refused."
9. Besides, after conducting investigation in the matter, challan of the case has been submitted in the trial Court, the applicants (accused) have been remanded to judicial custody, while after taking cognizance the trial has commenced with the trial of the case.
10. Perusing the record tentatively, the counsel for the applicants (accused) has successfully made out a case of further inquiry, therefore, I am inclined to accept the instant application and grant bail to the applicants (accused) subject to furnishing surety in the sum of Rs,300,000/- (Rupees Three Hundred Thousand) each, with P.R. bonds of the like amount to the satisfaction of trial Court or Additional Registrar of this Court.
The observations made hereinabove are tentative in nature and the same shall not influence the merits of the case.