1. ' By this application the complainant Khushti Khan has moved for cancellation of bail granted to accused Hakim Dad by IInd Additional Sessions Judge, Karachi vide his order, dated 30th September, 1984. In the same application the complainant has also impugned the order, dated 4- 11-1984, whereby the said learned Judge declined to cancel the bail of the accused.
2. ' This case relates to the murder of Mureedi Khan which took place on 1-4-1984 at about 6-00 p.m.
3. Some hours prior to the said murder quarrel had taken place between the children of the deceased who was, brother of complainant Khushti Khan, and son of accused Hakim Dad. On accused Hakim Dad's return from his duty, his wife apprised him about the quarrel. Thereupon he went out and attacked the deceased Mureedi Khan with knife causing him injuries on abdomen.
4. ' The incident was witnessed by complainant who was then coming from Babar Market beside, Zahir Dad and Ran Dad. The deceased died of his injuries and was removed to the hospital. The complainant lodged F.I.R. Which after due investigation resulted in challaning of the accused in the Court of law.
5. ' It is disclosed in the impugned order that police arrested the accused from the Surgical Ward No, 2 of Jinnah Hospital where he was admitted. The learned Additional Sessions Judge on consideration of the accused's admission in the hospital following the occurrence and knife injuries located on his abdomen and chest allowed him bail, taking the view that the case of the accused called for further enquiry as it was to be determined which party had initiated the fight and whether the accused had exercised his right of private defence.
6. ' The learned counsel for the applicant contended that the injuries found on the person of the accused were simple in nature and, therefore, it was not possible to infer from such injuries that the complainant party were the aggressor or that the accused had committed the murder in his self- defence. He further submitted that the plea of self-defence could not be considered at the bail stage particularly when counter-case was filed by the accused party. The learned counsel also cited some precedent cases in support of his contention.
7. Taking up the first contention of the learned counsel for the applicant, it is not denied that the accused was arrested from the Surgical Ward of the Jinnah Hospital where he was admitted. The impugned order reveals that the accused had injuries on chest and abdomen which are vital parts of human body. As to seriousness of the injuries the order further shows that the accused was given glucose and blood during his stay at the hospital. There is however, nothing to show that the injuries on the person of the accused were self-inflicted.
8. ' As is disclosed in the judicial confession, the accused has raised a plea of self-defence stating that it was the deceased who took the initiative and gave two injuries to him with knife. Thereafter, the accused has further stated, he snatched the same knife from the deceased and inflicted injuries on him and that the deceased later on succumbed to the said injuries. The learned trial Judge has rightly pointed out that the injuries on person of the accused were suppressed by the complainant. In these circumstances it needs to be determined how the accused received the injuries. The possibility of his having received the same in exercise of his self-defence cannot be altogether ruled out.
9. ' As for the next argument of the learned counsel for the applicant that plea of self-defence cannot be considered at the bail stage, I may first refer to the authorities relied upon by the learned trial Judge. In this connection reliance has been placed on Mitho v. The State 1978 SCM R 231 wherein the Supreme Court while releasing the accused on bail observed: "After hearing the learned counsel for the parties, we are of the opinion that in the circumstances of the present case prima facie it appears that petitioner's side had a right of private defence. The question whether he exceeded this right requires further enquiry."
10. ' In another case of Amir v. The State PLD 1972 SC 277 the alleged eye-witness (lodged F.I.R.) stated before the committing Magistrate that the accused fired his gun after the deceased had fired at accused's companion. According to the accused's side, the evidence of even other eye-witnesses was to the same effect. While holding that possibility of self-defence is not ruled out, the Supreme Court was pleased to observe: "It may also be observed that even for the purposes of bail, the law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused."
11. ' The third case referred to by the learned trial Judge is reported as Mst. Shafiqan v. Hashim All and another 1972 SCMR 682 wherein it was held: "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."
12. ' The learned counsel for the applicant has however relied upon the following authorities:
(1) Anwar Khan v. The State 1978 SCMR 314.
(2) Haji Rehmatullah and another v. The State 1979 P Cr. L J 36.
(3) Iqbalur Rehman v. The State PLD 1974 SC 83.
13. ' In the first case of Anwar Khan it was urged on behalf of the accused that plea of self-defence should be considered at the bail stage. It was held: "In our opinion this contention is not well-founded. Without any evidence on record it is not possible to raise any prima facie case in favour of the petitioner."
14. ' In the second case of Haji Rehmatullah the learned Single Judge of Lahore Court held: "It is not a cast iron rule that in cross-case, the accused charged with the offence of murder who had a few minor injuries which he may have sustained during the scuffle must always be released on bail."
15. ' In the third case of Iqbalur Rehman the view taken was that the High Court had fallen in error in granting bail by recording finding as to credibility of evidence as to plea of alibi as the ascertainment of truth or otherwise of the plea was function of the trial Court.
16. ' The last mentioned case is on the question of plea of alibi which is not involved in the instant case and as such it is of no assistance to the applicant. So far the case of Haji Rehmatullah is concerned, that too is not helpful to the applicant. All that has been ruled in this case that it is not always necessary that the accused facing murder charge should be released on bail on the ground of his having sustained minor injuries in course of the incident. This obviously does not mean that in all such cases bail should be refused. So far the rule laid down in the case of Anwar Khan is concerned, there is no doubt that prima facie case to be made out in favour of the accused should be supported by evidence. In the instant case the evidence referred to above was not available to the Court but also was by no means insufficient to raise a plea of self-defence.
17. The first three cases which are relied upon by the learned trial Judge clearly support the accused's case. In view of the authorities laid down in these cases, the argument of the learned counsel for the applicant that the plea self-defence cannot be taken into consideration at the bail stage is obviously without force. Of course if the said plea is not supported by any evidence on record, it cannot be the basis for granting bail to the accused. But that is not so in the instant case.
18. ' For the above reasons the learned trial Judge has exercised the discretion vested in him correctly on both the occasions: first when he granted bail to the accused and second time when he refused to cancel the bail already granted to him. No interference is, therefore, called for. Accordingly the application was dismissed by short order, dated 10-2-1985.