1. ' The three applicants Nadir s/o Jan Muhammad, Ago son of Ali Muhammad and Imam Bux son of Haji Alam all Gadanis by caste are facing trial under sections 302, 307, 458, 171/34, P.P.C. For murder of one Manzoor Hasan younger brother of the complainant. The incident took place on 4-12-4983 at about mid-night.
2. ' It is stated in the F.I.R. That about a week before this unfortunate incident the accused/applicants had made a request to the complainant to lend them his gun for a few days. The request was turned down resulting in bitterness and acrimony between the parties. The version in the F.I.R is that on the night of the incident the three accused dressed in police uniform and armed with firearms gave a knock on the door of the complainant. When the complainant opened the door, the three accused again asked for the gun from the complainant and on his refusal the quarrel started attracting members of the family of the complainant. Other persons of the locality also rushed to the scene and amongst them may have been sympathisers of the accused. Nadir accused is alleged to have fired the shots which hit deceased Manzoor, a younger brother of the complainant causing his instantaneous death. Other participants/P.Ws. Also were shot at by the other two accused/applicants resulting in fire-arm injuries to the members of the complainant party.
3. ' The three accused were ultimately overpowered, tied with ropes and detained till the police arrived to take them in custody. They have since then remained under detention and restraint, and that is the reason that they could not avail the chance to lodge an F.I.R.Or file a counter-case against their rivals in the cross-fight although all the three have received not less than 8 injuries each according to medical reports filed in the case.
4. ' A bail appliction was filed on behalf of all the three accused before the learned IV Additional Sessions Judge, Sukkur but the same has been rejected by the learned Judge by his order dated 20-5-1984. These three accused have now moved this Court praying for grant of bail to them.
5. ' Mr.Shaikh Ayaz learned counsel for the applicants has argued that the cross-fight is the result of long-standing dispute over some land. The complainant party are Malanos while the accused are Gadanis an element which usually fuels the fumes of feuds and acrimonies in this part of the world, and according to the learned counsel should never be under-rated or lost sight of on such occasions. The learned counsel proceeds to distinguish the role assigned to applicant Nadir with the role assigned to the other two applicants in the F.I.R and points out to the medical report by which the version in the F.I.R is belied. In any case it is not corroborated by the medical report. The learned counsel points out that according to the witnesses on the scene and the version in the F.I.R accused Imam Bux and Ago were armed with gun and revolver and have fired at complainant, Baqar, Heetam, Nawaz and Ahmed Hasan. But the medical report disclosed that none of the injuries found on these persons was caused by a fire-arm. Due to this glaring inconsistency between the two pieces of evidence, the role assigned to these two accused becomes highly improbable. This by itself entitles them to be released on bail. As a matter of fact, the learned State counsel who appeared before the learned Additional Sessions Judge did not oppose the bail application of these two accused/applicants. Unfortunately the learned Additional Sessions Judge, has not bestowed his attention to examine this contention of the learned counsel and seems to have been overwhelmed by the cruelty and gravity of the offence in the concluding part of his judgment, leaving this important point in favour of the accused undetermined. There is no doubt that crime should never be allowed to go unpunished. The graver the injury, the harder the blow to the arm of the assailant. But the stage of retribution is yet to come. For the present no one should grudge the liberty of the present accused on the assumption that an allegation in the F.I.R. Is likely to be materialized at a later stage. If the dents in the structure presented in the F.I.R. Are so imminent as to point out to a possibility that perhaps the version given in the F.I.R. May be found to be exaggerated on account of strained relations between the combatants of the fight on that unfortunate night of 4-12-1983 the benefit should go to the accused. The question of liability of these two accused for the fatal gun-shot caused by the accused Nadir would surely be examined at the proper time. But for the present these two accused are entitled to be released on bail on account of glaring inconsistency between the version F.I.R. And medical report. They should be released on bail on their furnishing solvent surety in the sum of Rs,25,000 each with P.R. Bond in the like amount to the satisfaction of] the trial Court.
6. ' Now I take up the case of the applicant Nadir, without meaning to say anything which might cause prejudice to this applicant at the time of his trial, the position seems to be that the role assigned to him in the F.I.R. Is that he fired the gun and caused the injury which resulted in the death of deceased Manzoor Ahmed. I felt very reluctant to admit this accused on bail particularly because this ocular evidence is corroborated by the medical report.
7. ' But in all fairness to the learned counsel for this applicant let me examine the contentions raised by the learned counsel in support of the plea of bail for this accused. His contention is that it is a case of cross-fight between two rival groups. The crucial question who was the aggressor in this fight is yet to be determined. Assuming without conceding that the fatal bullet that killed the deceased was fired by this applicant still it is open to this applicant at the trial to show that during that free fight in which he himself has suffered no less than 8 injuries, this shot was fired in self- defence and not with the intention to kill. The scales might turn in his favour. And if he is able to prove that he was not the aggressor then, he would be entitled to acquittal. Such are expectations of the learned counsel. Then the learned counsel puts forth weight in his arguments by saying that in any case it is a case of further inquiry and as such this applicant should be admitted to bail. He has pitched his arguments on two cases in which in more or less similar situations the same line of argument found favour with the Supreme Court. In the case of Shafiqan v. Hashim Ali 1972 SCM R 682 accused Hashim All involved in the murder of petitioner's son was allowed bail by the High Court. The mother of the deceased filed petition for cancellation of the by the High Court. The Supreme Court rejecting this petition observed:- "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. Subject to the above remarks the petition is dismissed."
8. ' Another case relied upon by the learned counsel is 1978 SCM R 346.
9. ' In this case also there was a cross-fight. The accused caused injuries to the complainant party and complainant party inflicted injuries on the accused.
10. ' The scene of occurrence was the field belonging to the complainant party. Six members of the complainant party suffered injuries while two from the accused party sustained injuries. Earlier attempts to get bail remained unsuccessful. But finally bail was granted to the accused by the High Court. Appeal was filed before the Supreme Court against the order of the High Court granting bail.
11. Dr. Nasim Hasan Shah, J. After a close scrutiny of the facts and circumstances concluded his findings in the following passage:- "We have heard the learned counsel for the parties and perused the record. We observed that members of both sides have received. Injuries, in that six persons from the complainant side have been injured; whereas two accused (respondents herein) have received injuries. In addition, one Ali Muhammad was also injured from the side of the accused, but he has not been mentioned as an accused in the F.I.R. We are, therefore, in agreement with the learned Judge of the High Court that it cannot be said with any degree of certitude, at this stage, as to which side was the aggressor, and his finding that the case was one of further inquiry cannot be held to be perverse, arbitrary or capricious. We are therefore, not inclined to interfere with his discretion."
12. ' The above dictum laid down by the Supreme Court is binding on all courts and I respectfully follow the guidelines laid down in these two decisions.
13. ' Mr. Zawar Hussain learned A.A.-G. Representing the State, however, opposed the bail application of Nadir and sought to distinguish the present case from the case of Muhammad Shafi quoted above. The distinction, according to the learned A.A.-G. Was that in that case an abortive attempt was made by the accused party to lodge an F.I.R and on account of refusal of the S.H.O. To register the case after 16 days of the occurrence, a private complaint was lodged by the accused against the complainant party before the Ilaqa Magistrate.
14. ' The learned A.A.-G. Points out that there is no counter-case filed by the accused in the present case. The explanation offered by Mr. Shaikh Ayaz is that right from the first day when his clients were apprehended and tied with ropes and handed over to the police, they have never had any facility to enable them to pursue any legal remedies as they have continuously remained behind the bars under restraint. This explanation may or may not be genuine. In my opinion, little assistance can be expected from the filing or not filing of counter-case or a counter-F.I.R. For the purposes of determining which of the two combatants is the aggressor. Counter-case or no counter-case, the 8 injuries on the person of each accused are speaking louder than any counter- case to establish that there was a cross-fight. Once the position of cross fight is accepted question of determining the aggression assumes importance. The failure to lodge an F.I.R or file a counter- case may be due to the reason advanced by the learned counsel for the applicant or it may be otherwise, is of no consequence so long as the participation of the accused/applicants in the fight remains undisputed. The injuries on their persons are the best certificates to raise a plea that they were the victims and their adversary were the aggressors. I may point D out that in the case of Mst.
15. Shafiqan v. Hashim Ali referred to earlier there is no indication that the accused party had also filed an F.I.R. Or there was counter-case against the complainant. The observations in the judgment are "There are counter-versions and it is yet to be seen as to who is the aggressor. " The expression "counter-version" is the criterion to judge whether there was a cross-struggle and which of the parties exceeded the limits and became aggressor.
16. ' In this view of the matter the case of Nadir falls within the scope of the two cases decided by the Supreme Court and this applicant must also be admitted to bail. He is therefore, allowed to be released on bail on his furnishing surety in the sum of Rs, 30,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.