The respondents 1 to 4 herein have been charged for the murder of Khadim Hussain in the F. I. R. No, 28, recorded by the complainant Nazir Hussain in Police Station Cantt. D. I. Khan, on 15th February, 1983. The complainant mentioned in the F. I. R. That deceased Khadim Hussain was given beating with axes and sticks on account of previous enmity between the parties. Injured Khadim Hussain was taken to the Police Station in unconcious stage and case was registered under section 307/34, P. P. C., Injured Khadim Hussain died 4 days afterwards and the accused were charged under sections 302/34, P. P. C. The deceased has sustained 12 injuries, out of which 8 injuries were caused by a sharp-edged weapon and 4 injuries were caused by blunt weapon. The accused were allowed bail by the learned Sessions Judge, vide order dated 31st March, 1983. Haq Nawaz, the petitioner herein, moved the present application for withdrawal of the bail. Accused A hmad Nawaz, who is respondent No, 4 herein was not assigned any active role in the F. I. R., the application for recall of his bail was not admitted, vide order of the Court, dated 9th April, 1983.
2. It has transpired that Rab Nawaz on the accused also received 4 injuries by a sharp-edged weapon and he lodged an F. I. R. No, 29 in the same Police Station on the same date charging Nazir Hussain and Khadim Hussain, complainant and deceased, respectively of F. I. R. No,
28. Nazir Hussain has been charged under section 307/34, P. P. C. In F. I. R. No, 28, The learned Magistrate did not allow bail to accused Nazir Hussain but he was admitted to bail by the learned Sessions Judge, D. I. Khan. It is noteworthy that out of the 4 injuries sustained by the complainant Rab Nawaz of F. I.
R. No, 28, 2 injuries are on the head and one on the abdomen which would mean that these are fatal injuries. It was contended by the learned counsel for the petitioner herein that the learned Sessions Judge had improperly allowed bail to the respondents on the ground that it was a cross- case and it had yet to be determined as who was the aggressor. It was urged by him that this was no ground for allowing bail to the accused and moreover the respondents had been charged with a capital offence and were not entitled to the concession of bail. In this respect he relied on the case of Imranuddin and another v. The State where the High Court had refused to allow bail to the accused and that order was not disturbed by the Supreme Court by holding that the mere fact that in cross-case persons charged for having caused injuries had been released on bail and it was no ground for releasing petitioners, on bail particularly when allegations against them were more serious. He further relied on the case of Anwar Khan v. The State where the contention, that deceased party being aggressors, plea of self-defence ought to have been considered and accused released on bail was not considered fit to raise any prima facie case in favour of accused without any evidence on record. The learned counsel further invited my attention to the case of Muhammad Usman and another v. The State where the order of High Court refusing to grant bail to the accused was not reversed although counter-version of the case was available in the F. I. R.
Lodged by one of the accused.
3. On the contrary the learned counsel for the respondent referred to the case of Manawar Din v.
Gul Zaman and another wherein a cross-case bail allowed to accused was not cancelled and my Lord the Chief Justice was pleased to observe as follows :- "There are three categories of cross-cases. The first would be in which out of the two parties, prima facie there is a case against one party to have initiated aggression on the other party and the latter party has acted in self-defence. The party that acted in self-defence, would evidently be entitled to bail. The second would be in which two opposite parties have, by chance come across and out of fear have assaulted each other. In that case, both parties would be entitled to bail on the assumption that they have acted in self-defence. The third would be in which two opposite- parties have indulged in the fight at the spur of moment. In that case, unless evidence is recorded, it has yet to be determined as to which party has committed aggression."
The learned counsel for the respondent further relied upon the case of Mst. Shafiqan v. Hashim Ali and another where in a murder case, counter-version by accused was available and bail allowed by the High Court was not recalled on account of the fact that the question whether accused or deceased was aggressor had yet to be determined. In the case of Ashiq Hussain v. The State bail was allowed to the accused on the plea that versions given by the parties in cross-cases as well as other material on record was silent regarding their own part in incident resulting in death of one person on one side and injuries to accused persons on other side and both the parties condemning each other to have aggressed upon it and evidence as to how whole affair started and which side was responsible for starting aggression had yet to be adduced at trial and the case was found fit for further enquiry... The learned counsel for the respondent further relied upon the case of Ghulam Hussain v. Muhammad Saleh and another where in the cross-case bail allowed by the High Court was not cancelled on the ground that the matter was of further inquiry and no express provision or principle of law was violated.
4. I have carefully gone through all the authorities cited before me by the learned counsel for both the parties and I have come to the conclusion that in cross-case in matters of bail there is no hard and fast rule that the party which has committed a more serious crime 'should be refused bail and the other party be afforded this concession. In cross-cases the prime question for determination is as which of the parties was aggressor and matter is one for further inquiry. Reverting to the circumstances o the present case it would appear that deceased Khadim Hussain immediately became unconcious after receiving the injuries and so he could not have caused any injuries to the accused party after he was injured. It is most probable that the accused party was attacked first.
There is also the circumstance that both the parties in their respective F. I. Rs, have not explained injuries sustained by the opposite party. Both the parties are guilty of suppression of material facts,1 2 3 4 5 6 7 which may ultimately go against them when evidence is recorded. It is yet to be determined as which of party was the aggressor. In such a case the bail allowed to the party cannot be recalled on the ground that prima facie it is charged for a more serious offence than the opposite party, as in the present case. In the circumstances I would not, therefore, deem it proper to interfere with the impugned order of the learned Sessions Judge, D. I. Khan. The petition is dismissed. 1983 SCM R 278 1978 SCM R 314 1975 SCR 391 P D 1977 Pesh. 59 1972 SCM R 682 1982 P Cr. L J 49 1983 SCM R 357