This Bail Application has been moved by 12 out of 13 accused who have been sent up by police in Crime No. 11/81 for offences under sec--tions 302, 307, 323, 324, 325, 504, 114, 147 and 148 read with section 149, P. P. C. Accused Imam Bux is absconding and all the 12 applicants are in custody since their arrest in this case.
2. The F. I. R. Was lodged by the complainant Mohammad Bux Sahto on 15th January, 1981 at 7.00 p. m. At Police Post Hingorja. According to the F.
1. R., at about sunset time on the day of the report, the complainant Mohammad Bux and Mohammad Saleh were giving water to flowers in the "Makan".
At that tine the absconder Imam Bux along--with the 12 applicants, namely, Mozal, Saboo, Shah Bux, Sadik, Alu, Ghadho, Mir, Sajjan, Titoo alias Ghulam Rasool, Ghulam Nabi, Arbab and Ghulam Rasool came there. According to the F. I. R., Mozal and Sadik were armed with hatchets and the others were armed with lathis. Saboo and Shah Bux, after abusing the complainant Mohammad Saleh, instigation, the accused gave the complainant and Mohammad Saleh blows with lathis and hatchets. According to the F. I. R., Sadik gave the complainant blow with sharp side of the hatchet on the head. The com--plainant and Mohammad Saleh raised cries which attracted complainant's brother Ghulam Rasool, Mohammad Musa, Rahim Dad, Ghulam, Mir Mirbahar, Khamiso, Ghuiam Hyder and other persons. According to the complainant the accused gave blows to Ghulam Rasool, Mohammad Musa and Rahim Dad who fell down. The accused then ran away. On account of injuries, according to the F. I. R., fingers of the hand of Mohammad Musa got fractured and others received injuries on various parts of the body. The motive for the crime is alleged to be enmity.
According to the F. I. R., the accused had caused injuries with intention to kill as they had closed the passage of water which gave water to the "Makan", but this action on the part of the accused was opposed by the complainant party and, therefore, the accused used to threaten Mohammad Saleh that be would be killed if he opened the passage of water to the "Makan". According to the F. I. R., the complainant brought the injured Mohammad Saleb, Ghulam Rasool, Mohammad Musa and Rahim Dad to the Police Post, when the F. I. R. Was lodged. Ghulam Rasool later on succumbed to his injuries.
3. Apart from the injuries suffered by the complainant anal four other persons of the complainant party three of the accused also received injuries. The same medical officer examined all the injured persons of the complainant party, as well as the three injured accused, namely, Mozal, Alu and Ghulam Nabi. According to the medical reports the following injuries were, suffered by the various persons involved: - Ghulam Rasool.- He received four injuries all with hard blunt weapon with three injuries on the head and one on the shoulder. Ghulam Rasool died on 16th Jaunary, 1981 at 8.45 a. In. In the Hospital.
Rahim Dad.-Two lacerated wounds ; one on the head and one on the forearm. Shown to be simple injuries according to the medical report.
Mohammad Musa.-Two injuries ; one swelling on the head (grievous) and the other on the wrist joint (simple).
Mohammad Saleh.-One injury on the bead caused with a hard blunt weapon.
Muhammad Bux complainant.-Two injuries; one incised wound on the skull caused by a sharp cutting weapon and one contusion on the thumb of the right hand (simple injuries).
Accused Mozal.-Four injuries with one grievous.
Accused Alu (Ali Bux).-One injury on the scalp caused with a bard blunt weapon.
Accused Ghulam Nabi.-Four injuries on the face.
4. In the F. I. R. The complainant has mentioned that the accused gave him and Mohammad Saleh injuries and he has also stated that Sadik had given him blow with sharp side of the hatchet but as far as injuries to other members of the complainant party are concerned, no specific part is assigned to any accused in the F. I. R. But generally it is mentioned that the accused gave blows to the members of the complainant party and that injuries were caused to the complainant, Mohammad Saleh, Ghulam Rasool, Mohammad Musa and Rahim Dad; However, according to the police statements made by other P. Ws., specific parts have been assigned to different accused. As far as Ghulam Rasool deceased is concerned, the injuries, according to the P. Ws., were inflicted by Mozal, who was armed with a hatchet, Ghulam Nabi, who was armed with a lathi. As mentioned earlier, four injuries were caused to deceased Ghulam Rasool with three grievous injuries on the head with hard blunt weapon and fourth injury was caused on the shoulder, and on account of these injuries Ghulam Rasool died next morning at 8.45 a. m. In the hospital.
5. I have beard at length Mr. Akhtar, Ali Kazi, Advocate for the 12 applicants. Mr. Hadi Bux K. Shaikh, Advocate for the complainant, and Mr. A. A. Dareshani, Advocate for the State. The case was well prepared and ably argued by all the three counsel. Learned counsel for the apple--cants have raised the following contentions in support of his plea for enlargement of the applicants on bail :-
(a) According to the F. I. R. Separate and distinct incidents had taken place. One incident, according to learned counsel for the applicants, takes place when the accused come and start giving blows to the complainant and Saleh. According to learned counsel, in spite of the accused being 13 in number and armed, and the com--plainant and Saleh being unarmed, no serious injuries are caused to the complainant Saleh. If the intention had been to kill it is contended, these two persons of the complainant party would have been killed in no time and without any difficulty by the 13 armed accused. The precise contention was that there was no intention to kill, even according to the prosecution case. The counsel further argued that the second incident starts when, at the call for help by these two persons (complainant and Saleh), other persons belonging to the complainant party come on the scene duty armed. When they come on the scene, suddenly a fight starts. According to learned counsel for the applicants there is no premeditation as far as this second incident is concerned, and even according to the prosecution case this is a fight between two armed parties.
(b) According to learned counsel for the applicants there are counter versions of the incident. It is on record that a counter-report was also filed by accused Mozal for, the injuries caused to the accused by the complainant party who were alleged to be the aggressors. The contention was that this being a case of counter-versions and at this preliminary stage it would not be possible for this Court to make any assessm ent as to who were the aggressors, the complainant party or the accused, and in the circumstances as injuries had also been caused to the accused by armed complainant party the apple--cants may be enlarged on bail.
(c)This is an admitted position that some of the accused sustained injuries which were apparently caused in this scuffle between the two groups but there is no explanation at all by the prosecution of the injuries caused to the accused.
(d) The complainant party which came to the help of the complainant and Saleh, according to the F. I. R., it was contended, were pre--pared in advance to fight as they had come armed with weapons which is obvious from the injuries received by the accused. Accor--ding to learned counsel for the applicants, as the complainant party had come prepared, this was a case of premeditation on the part of the complainant party.
(e) As far as accused are concerned, it was contended, this was not a pre-determined or prepared fight. If they had come prepared to kill or cause injuries, the complainant and Saleh could have been killed or seriously injured without any difficulty. It was contended that even according to the prosecution case apart from injuries to Ghulam Rasool, practically all the injuries to other persons of the complainant party were simple in nature and not grievous.
On the basis of the above contentions, it was argued that the apple--cants may be enlarged on bail. Learned counsel referred to several repor--ted judgments of Superior Courts of our country, and also an unreported judgment of a learned Single Judge of this Court, in support of his plea for grant of the bail to the applicants. I will briefly discuss these decisions at a later part in this order.
6. Mr. Hadi Bakhsh K. Shaikh, learned counsel for the complainant, vehemently opposed the request for bail made on behalf of the applicants. According to him, Ghulam Rasool, had died on account of receiving injuries in this premeditated attack by the accused. As far as Saleh is concerned, learned counsel for the complainant stated that Saleh had become unconscious on account of the injuries received and according to the report received from Karachi, where Saleh has been sent for treatment, injury to him has caused a fracture which has resulted in deafness. Learned counsel also highlighted the injuries caused to others. As regards the counter-report, learned counsel for the complainant argued that the counter-report was made after nearly 17 hours and no reason has been given by the accused for delay in filing this report, and in any case the police had cancelled the report on the ground that it was false. Learned counsel further contended that in the case of counter-versions bail should not be granted unless some evidence had been recorded and referred to certain reported judgments in support of his contention that the applicants are not entitled to bail.
7. I have also heard Mr. A. A. Dareshani, learned counsel for the State, who has also opposed this bail application. According to Mr. A. A. Dareshani, this was not a case of two incidents but it was one continuous incident itself and it is not necessary that common intention must be there before the incident start. According to learned counsel for the State it is too premature a stage to make even a tentative assessm ent of the case for the purposes of grant of bail and the present bail application, therefore should be rejected, but after some evidence has been recorded, the accused, if so advised, could file a fresh bail application.
8. I am here briefly refer to the various judgments relied upon by the learned counsel before me. Mr. Akhtar Ali Kazi, learned counsel for the applicants, cited the following judgments in support of his case :- (i)Noor Mohammad v. Abdul Razzaq 1976 SCMR 286.
(ii) Fazal Mohammad v. Ali Ahmed 1976 SCMR 391.
(iii) Mst. Shafiqan v. Hashim Ali 1972 SCMR 682.
(iv) Amir v. State PLD 1972 SC 277.
(v) Khalid Javid Gillan v. State PLD 1978 SC 256.
Mr. Hadi Bakhsh K. Shaikh, learned counsel for the complainant, relied upon the following reported judgments: -
(vi) Mohammad Usman v. State 1975 SCMR 391.
(vii) Anwar Khan v. State 1978 SCMR 314.
(viii) Abdul Jalil v, State 1977 P Cr. L J 150.
(ix) Fazal Hussain v. State 1974 P Cr. L J 161.
Mr. Akhtar Ali Kazi, learned counsel for the applicants, also, relied upon an unreported judgment dated 9th October, 1977 of Mushtq Ali Kazi, J. Passed in Criminal Bail Application in 767 of 1977.
9. (i) In 1976 SCMR 286, rioting took place between two parties resulting in the death of two persons and a simple fire-arm injury on the petitioner's side, and a grievous fire-arm injury on the other side. Two separate reports were lodged concerning the incident and cases against both parties registered. A learned Single Judge of the Lahore High Court granted bail to the respondents on the ground that both the parties having armed themselves with fire-arms were spoiling for a show down, and secondly as fatal injuries to the two persons on the petitioner's side were not attributed to any of the respondents and only the simple fire-arm injury was attributed to one of the respondents. Supreme Court of Pakistan, although observing that "One may not quite agree with the reasons of the High Court", refused to interfere, in exercise of its special jurisdiction, on the ground that it was not possible to suggest that the reasons for grant of bail given by the. High Court were fanciful or arbitrary.
(ii) In 1976 SCMR 390 there were counter-cases and a learned Single Judge of the Lahore High Court granted bail to the accused on grounds of there being prima facie probability of counter- version having some truth and some accused also having received injuries including a grievous injury on head of one accused. Supreme Court did not interfere with the order of the High Court but observed that the petitioner could approach the High Court for cancellation of bail should any accused misuse privilege of bail.
(iii) In 1972 SCMR 682 the Supreme Court did not interfere with the order of a learned Single Judge of the Lahore High Court and dismissed the petition observing as follows :- ---After hearing the learned counsel for the petitioner, we are satisfied that the High Court has exercised the discretion vested in it properly. There are counter-versions and it is yet to be seen as to who is the aggressor and whether the respondent has committed an offence punishable with death or transportation for life. It will, however, be open to the petitioner to move the committing Magistrate for the cancellation of bail after some evidence is recorded.---
(iv) In PLD 1972 S. C. 277 it was observed that even for purposes of bail, law is not to be stretched in favour of the prosecution, and that if any benefit of doubt arises, it must go to the accused.
(v) In PLD 1978 SC 256 the Supreme Court observed that bail is to be allowed or rejected on the basis of evidence produced by the parties and the Court is bound to make tentative assessment of its evidentiary value. It was further observed that section 497, Cr. P. C. Does not in terms contain any restrictions on the Courts power to assess evidentiary value of material placed before it, but the Courts have to refrain, directly or indirectly, from giving any conclusive finding on the question of guilt or innocence of the accused.
(vi) In 1975 SCMR 391 which is an order dismissing a petition for special leave to appeal, it was observed that the discretion exercised by the High Court in refusing bail was based on sound judicial principle and no fault could be found with it. The Supreme Court then stated `Merely because there was a counter-version of the occurrence in the first information report lodged by one of the accused, Mohammad Afzal, does not in our opinion affect the discretion exercised by the learned Judge on the basis of the materials on record of the present case.--- (vii)In 1978 SCMR 314 a contention was raised that complainant party were the aggressors and the plea of self-defence raised by the accused be considered and the accused be enlarged on bail. The Supreme Court observed that without any evidence on the record it was not possible to raise any prima facie case in favour of the accused/petitioner. The Supreme Court further observed as follows :-- "The learned Chief Justice of the High Court in his order under consideration, has observed that it appears to be a case of sudden fight between the parties, and each person was responsible for his individual act. It is clearly alleged in the F.
1. R. That Anwar Khan petitioner gave fatal blow to Altaf Hussain deceased by a hatchet. The injury was found by the doctor to be dangerous to life. It was on account of this that the deceased died. On these facts it appears to us that the learned Chief Justice was perfectly justified in reject--ing the bail application."
(viii) In 1974 P Cr. L J 150, an order of a learned Single Judge of the Lahore High Court, it was observed that unlawful assembly can be formed at spur of the moment and premeditation is not a prerequisite.
(ix) In 1977 P Cr. L J 161, also an order of a learned Single Judge of the Lahore High Court, on the facts of that case, it was observed that whether the accused were or were not vicariously responsible, could be considered after recording of evidence and determination of such question at the bail stage would prejudice case of either side.
(x) In the unreported judgment dated 9th October, 1977 of Mushtaq Ali Kazi, J. In Criminal Bail Application No. 767 of 1977, there were counter F. I. Rs. Three persons were killed on one side with 9 injured and one person of the other side was killed. The learned Single Judge disposed of the bail application in the following words :- "It is true that no opinion can be expressed on the merits suggesting as to which side were the aggressors in the course of these bail applications as that is likely to prejudice fair trials. However the other alternative of not granting bail until the recording of material evidence on both side would equally cause hardship as the trials these days are in ordinately delayed for years together.
Therefore, the only course left open is to grant to both the parties and leave it open to trial Court to cancel the bail of the party proved to be the aggressors."
10. A perusal of the reported judgments referred to above shows that there is no hard and fast rule that in case of counter-versions bail must be granted or bail should not be granted or that bail should not be gran--ted until some evidence has been recorded. Of course guidance is to be taken from judgments of Superior Courts but the fact remains that each case has its own peculiarities,. And facts of one case are rarely identical to another. As a result, subject to general principles laid down by the Superior Courts, the question of grant or refusal of bail is to be decided by the Court, before whom an application for bail is made in the light of the facts and circumstances of the case. I agree with learned counsel for the complainant that the mere fact that there are counter-versions would not by itself be sufficient for grant of bail in the present case.
However, I do not agree with learned counsel for the State and the complainant that in this case, as there are counter-versions, this stage question of grant of bail just does not arise and the Court must wait till such time some evi--dence is recorded by the trial Court and only then the question of grant of bail may be considered. In my view the facts of this case are distin. Guishable from the facts of the decided cases relied upon by the counsel for the parties, and it is in the light of the facts and circumstances as they appear on record that the question of bail is to be considered.
11. In this case it is apparent that there are counter-versions. It is also on record that injuries were received not only by the complainant party but also by some of the accused. No explanation at this stage has come from the prosecution side on record as regards the injuries sustained by the accused. Tentatively I am also of the view that the incident can be bifurcated into two separate incidents. First part of the incident is when the accused persons come up upon the complainant and Saleh and, according to the F. I. R., start giving blows to these two persons. They are armed with hatchets and lathis and the complainant and Saleh are unarmed. It was correctly contended by Mr. Akhtar Ali Kazi, learned counsel for the applicant that prima facie if the accused had the intention of killing these two persons, there was nothing in their way to stop them but the tact that in spite of blows having been given by all the accused as alleged by the complainant, neither of the two victims suffer fatal injuries. On the contrary, according to the medical report, only one injury is suffered by Saleh and Mohammad Bux received two simple injuries. Tentatively I am of the view that if all the accused who were armed with hatchets and lathis, and they were 13 in number, were giving blows to complainant and Saleh, in the natural course of things, more injuries would have been caused than are described in the medical report. If the incident had ended at this point of time, and in such a case an application for bail had been made, with the injuries suffered by Saleh and the complainant, I could visualize that bail would have been granted by the Court to the accused. Let us now come to the other part of the incident and that is when, at the request for help by the complainant and Saleb, other members of the complainant party. Arrive on the scene. On account of the injuries received by the accused, prima facie I have reached the conclusion that the mem--bers of the complainant party were armed. Now the fight starts and it results in injuries to both the sides. One F. I R. Is filed promptly by the complainant party but the other F.I.R. By the accused party is filed after some time. It is difficult at this stage to decide whether the complainant party were the aggressors or the accused were the aggressors and this question will be decided by the trial Court. On the basis of the facts of the case, as they appear on record, I am not inclined to hold that prima facie the accused party were the aggressors or that the complainant party were the aggressors. At this stage, tentatively I am of the view that the so-called second part of the incident was a case of sudden fight. At this stage, in the peculiar circumstances of the present case, and on account of the above considerations, the question of bail, according to my view, should be decided on the basis of injuries caused by the applicants individually. Mozal, who was armed with a hatchet and Ghulam Nabi with a lathi have been specifically implicated by the P. Ws.
In their state--ment to the Police for having caused blows to deceased Ghulam Rasool. Four injuries were sustained by the deceased, as per the medical report, out of which three were caused on the head and the fourth one on the shoulder. These injuries, according to the medical report, resulted in the death of Ghulam Rasool. I am, therefore, not inclined in favour of grant of bail to Mozal and Ghulam Nabi at this stage. As regards the other applicants, looking to the special circumstances of this case and the injuries allegedly caused to the members of the complainant party by them, I am of the view that a case has been made for grant of bail to them.
12. I accordingly grant bail to Saboo son of Mohammad Panjal (applicant No. 2), Shah Bux son of Mohammad Panjal (applicant No. 3) Sadik son of Saboo (applicant No. 4), Alu son of Sahibdino (applicant No. 5), Ghadho son of Sahibdino (applicant No. 6) Mir son of Ghul Mohammad (applicant No. 7), Sajjan son of Ghul Mohammad (applicant No. 8), Titoo alias Ghulam Rasool son of Shah Bux (applicant No. 9), Arbab son of Mohammad Parial (applicant No. 11) and Ghulam Rasool son of Kasho Faqir (applicant No. 12), on each of them furnishing a surety in the sum of Rs.
15,000 and each of them furnishing a P. R. Bond in the like amount, to the satisfaction of the learned Sessions Judge, Khairpur. . It is made clear that the observations in this order are for purposes of, bail only and the trial Court should not be influenced by them.