1. ' The applicant is facing trial under sections 302, 307, 452, 247, 148 and 149, P.P.C. Alongwith co- accused before the learned Sessions Judge, Karachi West.
2. ' The brief facts giving rise to the present application are that on 11-41986, complainant Ch. Hameedullah lodged a report at P.S. Baldia Town, inter alia, alleging therein that;- "He is President of control Awami Committee Ittehad Town', since last six months. Lala Ayub has been selling Government lands in Ittehad Town since long time. He had tried to stop Lala Ayub, on which he started intrigues against him and his sons and colleagues. He had made representation to Baldia Town police station and the case was being investigated by Crime Branch and, therefore, Lala Ayub had against him. Today, i,e, on 11-4-1986, at about 12-15 p.m. He along with Haji Taj Mohammad, Khadim Hussain, and Manzoor Ahmed was sitting in a room at his buffalow tiara while his three sons namely, Fida Hussain, Noor Hussain and Babel Hussain were sitting in the courtyard.
3. Suddenly they heard gunshot reports and his sons started shouting. He and his companions came out and saw that Lala Ayub, Mama Kaddu, Shamim, Hakim Shah, Sukhi Jan and Shah Mohammad and their 5/6 companions who were armed with rifles and revolvers were firing at his sons due to which his three sons were injured."
4. ' Thereafter, the complainant and others took the injured to the police station and lodged the report.
5. ' A counter-report was lodged by accused Dildar being F.I.R. No, 73 of 1986, which was recorded under sections 307, 147, 148 and 149 which reads as under:- "He is residing along with his wife and children at the above address since last 5/6 years. He is driver by profession. He owns a plot in 'Ittehad Town since last 4/5 years. He had gone there to look after it, and while he and his companions namely, Ayub Jan, and Mohammad were passing in front of office of Ch. Hamidullah at 12-15 noon, they found Hamidullah, his two sons, brothers Shah Jehan, Haji Taj Molammad, Aijaz Hussain, Nawaz Khan and Ashraf armed with rifles and pistols and Dandas standing there. All of a sudden they started firing at them due to which he, Ayub and Jan Mohammad were injured. He received two bullet injuries on his leg. He was taken to Abbasi Shaheed Hospital in injured condition by a Suzuki Walla. Ayub and Jan Mohammad injured have also gone to Abbasi Shaheed Hospital in injured condition. This incident was witnessed by Khayal Shah, Naeem and Sadique and many other persons."
6. ' The complainant then went to the police station and lodged his report.
7. ' It appears that the accused in the case filed by Dildar were not challaned, and therefore, a direct complaint was filed before the Court in which the process has been issued under sections 307, 147, 148 and 149, P.P.C. During the investigation accused Mama Kaddu, Dildar, Mohammad Ayub son of Qassim Ali, and Shamim Hussain were arrested, while applicants Hakim Shah and Lala Ayub were shown as absconders. They moved application for bail but the same was rejected.
8. ' However, co-accused Mama Kaddu was released on bail on 15-10-1986, on the ground of illness, Dildar and Mohammad Ayub son of Qassim Ali were granted bail by this Court on 2-9-1987, co- accused Shamim Hussain was granted bail by the trial Court on 8-9-1987, while co-accused Hakim Shah was granted bail on 9-10--1988. The present applicant had filed an application for bail before arrest before this Court being Criminal Bail Application No, 409 of 1988, which was fixed for order on 9-10-1988, but in the meanwhile the applicant was arrested a d, therefore, the same was dismissed as infructuous.
9. ' The applicant moved an application for bail after his arrest before the le rued Sessions Judge but the same was rejected.
10. ' I have heard Mr. M.I. Memon, learned counsel appearing for the a plicant, Mr. Abdul Ghafoor Mangi, learned A.A.-G. For the State, and have g ne through the documents produced along with the previous as well as the present hail application.
11. ' It has been contended by Mr. M.I. Memon, learned counsel appearing for the applicant, that complainant Chaudhary Hameedullah, P.W. Noor Hussain son of Hameedullah, Babar Hussain son of Hameedullah, Haji Taj Hohammad, Mohammad Sadiq and Mansoor Ahmed have filed affidavits exonerating the present applicant. That there were counter-cases between the parties and it was yet to be seen as to who was the aggressor, inasmuch as the co-accused Dildar Khan had filed counter-FIR. Before the same police on the same day but the police was siding the other side and, therefore, he filed a direct complaint before the Court in which the learned 1st Additional Sessions Judge, Karachi West, has been pleased to issue process under sections 307, 147, 148 and 149, P.P.C.
12. Against the complainant party of the present case. That some of the co-accused have been released on bail by this Court on merits and the case of the present applicant was identical to that of those co-accused. It was further contended that the applicant was at Peshawar on the day of incident and had attended a marriage and acted as witness in a marriage ceremony. That A.S.I.
13. Mohammad Alam had gone to Peshawar and examined witnesses who had supported the plea of alibi raised by the applicant. That the affidavit of complainant Hameedullah clearly shows that he had not named the present applicant in the F.I.R. And police had dishonestly mentioned his name in the F.I.R. That even otherwise there are counter-cases between the parties and the allegations against the applicant and co-accused are general in nature. The F.I.R. Does not show as to who was responsible for the fatal injury. In support of the above contentions, the learned counsel has relied upon the Photostat copies of statements and affidavits of witnesses filed before the trial Court, photostat copy of Nikahnama, receipt. From Al-Mumtaz Hotel, Peshawar dated 11-4-1986, showing message about the present incident, receipt regarding the payment of Rs,60 paid by the present appellant to the hotel and the affidavits of the above witnesses. He has also produced a copy of telegram sent by the applicant to I.-G.P. Sind, Karachi and others.
14. ' He has further contended that the applicant was available at Peshawar and it was known to the concerned police and he was never informed by the police that he was required in the above case.
15. ' Mr. Abdul Ghafoor Mangi, learned AA.-G. Appearing for the State has conceded that in view of the above circumstances and the fact that the applicant is in custody he has no objection if the bail is granted to the applicant.
16. I have considered the contentions of the learned counsel. Admittedly, the allegations made in the F.I.R. Are general in nature. It is not mentioned in the F.I.R.As to who was responsible for the fatal injury caused to the deceased. The affidavits filed by complainant Ch. Hameed Ullah, his two sons, and other witnesses clearly exonerated the present applicant. It will be worthwhile to mention here that the witnesses who had filed their affidavits before the trial A Court were called by the learned trial Judge in the Court and they had admitted the contents of their affidavit except P.W. Sadiq who had admitted the contents with some reservation. The 161 Cr.P.C. Statements of witnesses who were examined by A.S.I. Mohammad Alam at Peshawar were also produced before the learned trial Judge in support of the plea of alibi raised by the applicant. Unfortunately, those original statements were not available in the police papers but on inquiry the S.H.O. Explained that those statements were available with the D.S.P., as the inquiry regarding the plea of alibi was held under his orders. Be' that as it may, the fact remains that the plea of alibi was raised by the applicant at an initial stage and it was supported not only by ocular evidence but by documentary evidence as well. Applicants Mohammad Ayub, Shamim Hussain, and Hakim Shah were granted bail by this Court on merits in September, 19871 and October, 1988. The case of the present applicant is identical to that of the above three accused.
17. ' In the case of Mohammad Fazal alias Bodi v. The State 1979 SCMR 9 it was observed by their Lordships of the Supreme Court that:- "The co-accused to whom a role similar to that of the petitioners was attributed had been released, the petitioner was also entitled to bail on the principle of requirement of consistency in the same case." and the petitioners are released on bail.
18. ' In the case of Abdus Salam v. The State 1980 SCMR 142 it was observed by their Lordships of the Supreme Court that: "Courts to maintain equity of treatment between the persons placed in similar situation and similar circumstances. No distinction between the case of petitioner and the case of co-accused, since released on bail, privilege of bail, held, should not have been refused to petitioner." ' and the petitioner was ordered to be released on bail.
19. ' In the case of Shafiqan v. Hashim Ali and another 1972 SCMR 682, the respondent was granted bail by the High Court observing that there are counter-versions and it is yet to be seen as to who is aggressor, and whether the respondent had committed the offence punishable with death or transportation for life. Mst. Shafiqan mother of deceased filed petition for Special Leave to Appeal but the same was dismissed by the Humble Supreme Court.
20. ' In the case of Jaffer and others v. The State 1980 SCM R 789 it was observed by their Lordships of the Supreme Court that:- "Material on record not showing as to which of the accused caused fatal injury leaving room for consideration regarding common intention of other accused to kill deceased, held, case one of further inquiry and bail was allowed."
21. In this case there were counter-versions and one of the accused had also received injuries in the fight.
22. ' In the case of Rehmat Ali and another v. The State 1979 SCM R 30 the complainant in the case had resiled from his version as given in the F.I.R. And exonerated the accused, likewise eye-witnesses had also filed affidavits exonerating the applicant, and it was observed by their Lordships of the Supreme Court that:- "But without commenting as to what weight, if any, can and ought to be attached to the above- mentioned statement of the complaint and the affidavits relied upon by the petitioners in support of his plea for bail, we are inclined to think at this stage at least it is difficult to say if the petitioners have committed the offence. More particularly, when the complainant himself seems at the moment to disown the prosecution case. In the circumstances of this case, we think that the case of the petitioner is one of 'further inquiry' under section 497(2), Cr.P.C. And the petitioners are released on bail."
23. ' In the case of Allah Bux v. Nazar Hussain Shah and another 1979 SCM R 137 it was observed by their Lordships of the Supreme Court that:- "Affidavits filed by the alleged eye-witnesses exculpating the respondent from commission of crime to be considered by the trial Judge in concluding whether the respondent could be said to have been connected with the crime and the High Court while considering the above material in reaching the conclusion whether the respondent could be said to have been connected with the offence in view of the affidavits filed by the eye-witnesses was right in considering that this was a case of further inquiry under section 497(2), Cr.P.C. And consequently it was not the case in which bail could be refused to the respondent." ' and the petition for Special Leave to Appeal was dismissed. Similar view was taken by this Court in 1986 PCr.LJ 433.
24. ' As far as the plea of alibi taken by the applicant was concerned, it was taken at an early stage during the investigation and it was prima facie supported by ocular as well as documentary evidence. There are numerous cases in which their Lordships of the Supreme Court have been pleased to grant bail on the plea of alibi and in certain cases have refused to interfere where the bail was granted by the High Court on the plea of alibi. It will be appropriate to mention some of the cases:- ' Ch. Mohammad Shafi v. Mohammad Anwar Sama 1975 SCM R 219. Mst. Jannatani Bibi v. Syed Mohammad and another 1968 SCM R 795.
25. ' All Sardar v. Gul Moeen and another 1981 SCM R 860. Manzoor and another v. The State 1986 P Cr. L J 460.
26. In view of the above factual as well as legal position I am of the considered view that the case of the applicant requires further inquiry, and therefore. I direct that the applicant shall be released on bail on furnishing surety in the sum of Rs,1,00,000 (Rupees One Lac) only and P.R. Bond in the like amount to the satisfaction of Nazir of this Court.
27. ' The observations made by me are tentative in nature, and the learned trial Judge will hear and decide the above case uninfluenced by whatever has been said or observed in the above order.