1. ' The applicants are arrested alongwith co-accused under sections 307, 147, 148, 149, 323 and 324 P.P.C. By Sinjhoro Police.
2. ' In nutshell the case of the prosecution is that on 19-11-1988 complainant Shahnawaz lodged report at Police Station Sinjhoro inter alia alleging that he was polling agent of Ch. Muhammad Asim at Polling Station Shadi Khan Khaskheli while he alongwith his brother Ali Nawaz relative, Tharo Khan Rind, Moso Thahim, Punno Thahim were Polling Agents of P.P.Party candidate namely Altaf Hussain.
3. Farooq Sanjhrani, Ghulam Haider Sanjhrani and Malook were Agents of one Waryam Faqir, candidate of Muslim League and according to him at about noon time candidate of Muslim League's Polling Agents picked up a quarrel with them and abuses were exchanged and harsh words were used but the complainant and others left the Polling Station and while they were going towards village and had covered a distance of about three furlongs, Farooq, Shadi Khan armed with guns, All Bux armed with hatchet and Ghulam Rasool; Nawaz Ali, Rasool Bux Malook, Umaid Ali Waroo, Ghulam Haider, Laiq and Malook armed with Lathis appeared there and Farooq and Shadi Khan challenged and Farooq Sanjrani fired at Moso Thahim who fell down receiving the injury. It is the case, of the complainant that Shadi Khan also fired at complainant party, Ali Bux gave sharp side hatchet blow on the left side of Qadir Bux below the chest while Ghulam Rasool and others inflicted Lathi blows to complainant and others. From the accused side Shadi Khan lodged report at the same police station alleging that he, Farooq, Malook and Ghulam Rasool were polling agents of Waryam Faqir and Shah Nawaz was Polling Agent of Ch. Asim whereas Ali Nawaz and Moso were agents of P.P.P. Candidate Altaf Hussain at the Polling Station Shadi Khan Khaskheli. At about 12-00 noon there was a dispute and both the parties exchanged harsh words, therefore they left the polling station, while they covered about three furlongs towards West Shah Nawaz and others armed with Lathis and brickbats attacked them and caused injuries to the complainant, Ghulam Rasool and Nawaz Ali.
4. ' After recording the reports, police started investigation and the applicants and nine co-accused were arrested who moved bail application before the trial Court and the learned trial Judge was pleased to grant bail to nine co-accused while the application of present applicants was rejected vide order dated 28-11-1988, hence they have approached this Court for grant of bail.
5. ' I have heard Mr. Abdul Qadir Halepota who has appeared for the applicants and according to the learned counsel the applicant Ghulam Farooq and co-accused Shadi Khan were armed with guns and Farooq fired at Moso and co-accused Shadi Khan fired at complainant party but only one .12 bore empty has been found from the Wardat. He further argued that although the allegation against Ghulam Farooq is that he fired at P.W. Mooso but medical evidence shows that the blunt substance injury was found on the person of Mooso as such the allegation against him is belied by medical evidence. He emphatically urged that there are counter-cases between the parties and from both sides accused have been arrested and it is yet to be seen as to which of the parties is the aggressor. He has argued that as many as three accused persons and one another person have also been injured which fact has been suppressed by the witnesses which goes to show that the witnesses have no respect for speaking the truth. Co-accused have been granted bail and according to the learned counsel the present applicants are also entitled to the concession of bail on the plea of counter-cases. In support of his contentions Mr. Halepota has placed reliance on 1977 P.Cr.L.J. 159, 1978 SCM R 346, 1980 SCM R 142 and 1984 SCM R 530.
6. ' Mr. Zaheer Qureshi, the learned counsel appearing for the State has contended that although there were certain infirmities in the prosecution evidence but since the incident occurred in a broad day-light and P.W. Mooso and Qadir Bux sustained grievous injuries which are attributed to the present applicants, hence they are not entitled to concession of bail.
7. ' I have considered the contentions of both the learned counsel and have gone through the F.I.R., order rejecting the bail application and the citations submitted at the bar. As far as allegation against applicant Ghulam Farooq that he had fired at Mooso is concerned, the allegation is belied by the medical report as it does not show that Mooso sustained any fire-arm injury. In this connection the learned counsel has placed reliance on the case of Mohsin v. The State (1977 P.Cr.L J 159) wherein it was observed by the Honourable Judge (Zafar Hussain Mirza, J. As he then was) that specific part assigned to the applicant when inconsistent with the medical evidence, the case falls within the purview of clause (2) of section 497, Cr.P. C. And applicant was released on bail. In the present case although it is alleged that the applicant and co-accused Shadi Khan had both fired at complainant party but police recovered only one .12 bore empty from the place of occurrence and, therefore, I am of the considered view that the case of Ghulam Farooq requires further inquiry with regard to his participation and involvement in the alleged offence and according to him he is entitled to the concession of bail, as such I direct that he may be released on bail if he furnishes solvent surety in the sum of Rs,50,000 (Rupees Fifty Thousand only) and P.R. In the like amount to the satisfaction of the trial Court.
8. ' Adverting to the case of Ali Bux, prosecution case is that he caused hatchet injuries to Qadir Bux below his chest which were found grievous. However, in view of the fact that there are counter- cases and both the parties have sustained injuries, it cannot be said with certainty at this stage as to which of the parties was the aggressor. In the case of Mst. Shafeeqan v. Hashim Ali and another (1972 SCM R 682) the respondents/accused were granted bail by the High Court on the ground that there were counter-cases arising out of the same incident and the mother of the deceased had filed petition for special leave to appeal before the Honourable Supreme Court but the same was dismissed with the observation that since there are counter-versions and it is yet to be seen as to which of the parties is aggressor and whether the respondent had committed an offence punishable with death or transportation of life. In the case of Muhammad Shafeeq v. Hakim Ali and others (1978 SCM R 346) the respondents/ accused 'were granted bail by the High. Court on the ground that six persons from the side of the complainant and two persons from the side of accused and one another person not mentioned in the F.I.R. Had sustained injuries, as such it was observed that at this stage it could not be said with any amount of certitude as to who was the aggressor, hence the accused was released on bail. Complainant Muhammad Shafeeq filed petition for special leave to appeal before the Honourable Supreme Court and it was observed by the Hon'ble Supreme Court as under:- "We have heard the learned counsel for the parties and perused the record. We observe 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."
9. ' The petition was, therefore, dismissed.
10. ' In view of the above legal and factual position that there are counter-versions and both the parties sustained injuries and it is yet to be gone into and found out as to which of the parties was the aggressor.
11. ' In the facts and circumstances of the case, I am of the view that the case of All Bux also requires further inquiry, hence I direct that applicant All Bux also be released on bail if he furnishes solvent surety in the sum of Rs,50,000 (Rupees Fifty Thousand only) and P.R. Bond in the like 'amount to the satisfaction of the trial Court.