1. ' The facts giving rise to this Bail Application are that an F.I.R., under section 302/34, P.P.C. Was lodged in Police Station Digri, District Tharparkar, at 18-45 hours, on 10-8-1988, by complainant Md.
2. Hasham son of Khuda Bux, caste Chohan, wherein the complainant stated that he, a labourer, his elder brother Urs, and his younger brother, Allah Bachayo, lived with their father in Allandad Colony.
3. Urs, who was working as Starter on bus at Kangoro, as usual, went to Kangoro in the morning, on 10- 8-1988. On the same day, at about 6-30 p.m., the complainant, alongwith Janoo and Razaq, had started from his house for the town, when they saw the complainant's brother, Urs, got down from Bus and proceeding towards the house. Mohammad Younus, Mohammad Bux son of Lal Mohammad and Mohammad Bux son of Haji Zaika, all Makranis, were standing at Digri Mirwa Chowk. When complainant's brother reached near Younus and others, the said Younus, Mohammad Bux and Mohammad Bux son of Lal Mohammad, within the sight of the complainant party, took out their daggers from "the Nepha" and attacked Urs causing dagger injuries. Younus was seen causing dagger injuries on the stomach (reproduced from F.I.R.), Mohammad Bux son of Lal Mohammad and Mohammad caused injuries on left side below the shoulder near chest and Mohammad Bux son of Zaika caught hold of Urs. Urs raised cries and complainant party also raised 'Hakals' not to kill the man. On the complainant party reaching the spot all the accused ran away towards Sabzi Market, with daggers. The complainant party saw Urs bleeding and succumbing on the spot due to the injuries. Other town people were gathered at the place of incident. The complainant left Razaq and Janoo at the dead body of Urs and went to lodge F.I.R. In which, as motive, he stated that six months back Urs had quarrelled with Younus Makrani and thus Younus, Mohammad Bux and Mohammad Bux son of Lal Mohammad, with common intention and object, had caused injuries to Urs and murdered him.
4. ' At 19-00 Hours, on 10-8-1988, Mohammad Younus son of Mohammad Yousuf lodged another F.I.R., under section 307/34 P.P.C., stating that he and his relatives Mohammad Bux son of Lal Mohammad and Mohammad Bux son of Zaika, all Makranis Baloch, reside at Baloch Colony, Digri Town. It was said that about 4-5 months hack Urs, Maqsood and others quarrelled with complainant Mohammad Younus and his other relatives. In order to take revenge the complainant, Mohammad Bux son of Lal Mohammad and Mohammad Bux son of Haji Zaika ('we all three') sat at the Garage of Moosa Makrani. At 6-30 p.m. Urs and Maqsood got down from Kangoro Bus. They were going towards the Bazar. The above three, with common intention, approached Urs froin behind and, on reaching him, complainant Younus gave 'Flakal' to Urs and caused injuries with dagger, Mohammad Bux son of Lal Mohammad also caused dagger injuries. Maqsood heat them with 'Mukkas'. Mohammad Bux son of Haji Zaika caught hold of Urs. In the meantime, Urs took out a country-made pistol from his 'Nepha' and fired direct at complainant Younus, with intention to kill him, and scored a hit on the right arm and, thereafter, all three of the party of Mohammad Younus ran away. Mohammad Younus threw away the dagger, which he had used in the commission of the offence in the grass of Engineers' Bungalow. Subsequently, Police arrested the three of them.
5. The complaint, therefore, was that Urs, with intention to kill Mohammad Younus, had fired straight at him and had injured him.
6. ' Subsequently, while still under arrest Mohammad Younus, on 20-9-1988, lodged a direct complaint under sections 307 and 324, P.P.C. Against one Maqsood son of Mohammad Sharif. If was stated that about 5 or 6 months back accused Maqsood, alongwith his companion, had attacked the complainant and wanted to kill him but he was, fortunately, saved receiving injuries.
7. F.I.R. Under section 307, P.P.C. Was lodged with Digri Police Station. The accused, who was alleged to be a hardened criminal, involved in many criminal cases and, being inimical towards the complainant, always used to publicly say that he would kill the complainant whenever he got a chance. On 10-8-1988, at about 6.30 p.m., when the complainant was sitting at the motor Garage of mechanic Moosa Makrani, near Mirwah Chauk, Digri suddenly, accused Maqsood, alongwith Urs Chohan who was also a hardened criminal, reached the spot. Seeing the complainant, accused Maqsood asked Urs not to spare the complainant he had lodged F.I.R. Against them. On this instigation, accused Urs took out . Country-made Pistol from his Shalwar and, directly, fired upon the complainant, the bullet hitting him on the shoulder. Accused Maqsood launched a dagger attack but the complainant grappled with him and snatched the dagger. In the meantime, Urs wanted to fire upon the complainant but, so as to save his life, the latter caused him injury with dagger, and yet another injury when Urs agair tried to load the pistol and wanted to fire upon him.
8. Thereupon, Urs fell on the ground and the complainant ran away to save himself and reported the matter to his councillor, Mohammad Umar Makrani. The incident was witnessed by Mohammad Bux son of Lal Mohammad, Mohammad Bux son of Zaika and other persons of the town. Councillor Mohammad Umar Makrani went to Police Station Digri, where the complainant insisted for lodging F.I.R. In the meantime, a crowd of 300 to 400 Punjabis gathered there. The S.H.O. Refused to lodge the report, arrested Councillor Mohammad Ulna( Makrani and told the complainant that he would get his signature afterwards but did so, without showing or reading the contents. The Police, according to him, did not record the F.I.R. Correctly, which was not read over to the complainant and the accused were favoured under the influence of a large crowd. Hence the direct complaint, which is shown to have been typed on 15-9-1988 and was submitted on 20-9-1988. The list of witnesses cites the complainant, the Medical Officer R.H.C. Digri, Mohammed Umar Makrani, Muhmmad Bux son of Lal Mohammad and Mohammad Bux son of Haji Mohammad Zaika, as witnesses.
9. ' Mr. Mohammad Afzal Khan, the learned 1st Additional Sessions Judge Mirpurkhas, has refused bail to the applicants disallowing, at this stage, weight to the counter-version of the applicants, the injury on the person of applicant Younus being simple and the applicants having waited for over a month in filing the direct complaint, which improves their version in the F.I.R. Besides, the learned Judge has declined to distinguish the case of accused Mohammad Bux son of Zaika since he, allegedly, got hold of the deceased to provide an opportunity to the rest of the accused to launch their attack.
10. ' Mr. Yousuf Leghari, learned counsel for the applicants, contends that the case was one involving counter-versions, that the accused had acted in self-defence, that the deceased and his associate were hardened criminals and that it was still to be determined which of the two parties were the aggressors, making the case one of further enquiry. Learned counsel has also placed on record an order under section 117(3), Cr.P.C. Dated 15-8-1988 passed by the F.C.M., Digri, against the present applicants, Muhammad Umer Makrani and 4 others and maintains that police is proceeding in the dispute in a partisan manner. I would refrain from making comments in the matter of security proceedings, at this stage, as due remedies, in that context, were available to the applicants and none are shown to have been availed of and, if availed, it is not known with what result. Mr. K.M. Nadeem, A.A.-G. Appearing for the State has opposed the grant of bail.
11. It is, now, well-settled that while bail cannot be withheld as a punishment grant of bail, in non- bailable cases, cannot be considered to be a routine matter and the discretion in grant or refusal of bail must he carefully weighed in the scales of justice. In cases involving penalty of death or imprisonment for life or for ten years, bail cannot be granted unless the Court first comes to the conclusion that there are no reasonable grounds for believing that the accused has committed any such offence but reasonable grounds cannot be confused with mere "suspicion". For such purpose, the Court is not called upon, at that stage, to conduct anything in the nature of a preliminary trial to determine the guilt or innocence of the accused but should, prima facie, be satisfied, on the material available, whether any tangible evidence can or cannot he offered, which, if remained unrebutted, may lead to an inference of guilt. Reference in this connection may be made to the cases reported as Mohammad Alam v. The State PLD 1967 SC 539 and Chaudhry Abdul Malik v. The State PLD 1968 SC 349.
12. ' In all cases in which a Court comes to the conclusion that the matter involves further enquiry, warranting the grant of bail, such a conclusion should be preconditioned by a finding that, in cases involving penalty of death etc. No reasonable grounds subsist for believing that the accused is guilty of such offence. If authority is needed for such a proposition reference may be made to the case of Najeeb Gul v. Khalid Khan and another 1989 SCMR 899.
13. ' A s to the question of sudden fight, counter-cases and injuries on both sides reference can he made to a number of decisions of the superior Courts but, for the present, only the following may be noticed:
(1) Huhammad Nazir v. Muhammad Sadiq 1978 SCMR 171.
(2) Muhammad Shafi v. Hakim Ali and others 1978 SCMR 346.
(3) Rchmat Ali v. Hussain and others 1978 SCMR 195.
(4) Khalilur Rehman v. State 1979 SCMR 168.
(5) Noor Muhammad and 10 others v. State 1982 P Cr. L J 329.
(6) Muhammad Hussain v. Muhammad Siddiq 1987 SCMR 861.
(7) Muhammad Jawaid v. State 1988 P Cr. L J 1107.
14. The principles evolved on the above subject also seem to he relevant to the existence or absence of reasonable ground for believing that the accused is or is not guilty of an offence falling within the prohibitory part of subsection (1) of section 497, Cr.P.C. In all such cases, as in the preceding paragraph, it must, prima facie, be shown that the injuries sustained by the accused party, in order to qualify for grant of bail, actually occurred during the course of the incident, that the same are either serious in nature or several in number to require an explanation from the complainant party and that they have not been brought about, by way of contrivance, to launch counter- proceedings, with a view to cloud the real offence. Suddenness of fight, on the other hand, may involve grave or sudden provocation and absence of pre-meditation. In cases qualifying these tests, there is likelihood of absence of "reasonable grounds" as contemplated in the later part of section 497(1), Cr.P.C, rendering the matter one of further enquiry and fit for grant of bail.
15. ' Ancillary to the above, are cases involving self-defence. Normally, plea of self-defence should be proved on trial of the offence and it may be too early, in many cases, to consider the same at the stage of grant of bail. Nonetheless, where, prima facie, at the stage of bail, it is established that the accused acted in exercise of self-defence, bail is to be granted. There is plethora of case-law of the Superior Courts on the subject but, for the present, only the following may suffice:-
(1) Ameer v. State PLD 1972 SC 277,
(2) Mitho v. State 1978 SCM R 231 and
(3) Ghulam Sadiq v State 1987 P Cr. L J 607.
16. ' In such cases, also, the Court, when holding that the accused, prima facie, acted in exercise of the right of self-defence, comes to a finding that "reasonable grounds" do not exist for coming to the conclusion that the accused is guilty of an offence punishable with death etc. And, it is then and if it reaches such conclusion,that a further determination is made, declaring that the case is of further enquiry, justifying grant of bail.
17. ' Now, coming to the facts of this case the fire-arm injury on the person of accused Younus has not been found to be grievous, on medical examination. As a motive for the offence alleged against the applicants it has been brought out that accused Urs and Maqsood had attacked Mohammad Younus five or six months prior to the incident in which context F.I.R. Under section 307, P.P.C. Was lodged with the Digri Police Station. This is said to have been a motive for the present applicants/accused to attack and kill the deceased Urs. Quite inexplicably, the same incident is sought to be cited as motive for the deceased and one Maqsood to attack applicants/accused in the context of the incident in these proceedings. Normally, if the deceased and his companion had got away with an earlier offence against the applicants/accused, it may have been the turn of the applicants accused to make a reply in the same token and not vice versa. In fact in the counter- F.I.R. From the side of Mohammad Younus, pre-meditation to take revenge is indicated. As this stage, in view of the provisions of Article 129, Illustration (e), Qanun-e-Shahadat, this Court is to presume that such F.I.R. Is the same, as lodged and was read out and signed by accused Younus, since, under a presumption, rebuttable on trial, all official acts are presumed to have been regularly performed. Besides, there is no explanation from the side of the applicants accused as to what was the occasion for them to be present in the vicinity of the residence of deceased Urs and at a time when he, in routine, should be expected to be returning from work. Likewise, there is no explanation as to how deceased Urs, who is said to be a hardened criminal, failed in achieving andy substantial success while firing at accused Younus from a point blank range. Nor is there anything to clarify as to what Maqsood, alleged companion of the deceased, was doing when Mohammad Younus, single handedly, succeeded in keeping both these persons at bay, snatching the dagger from one and doing away with the life of the other, while that other was always armed allegedly, with a pistol. Even the improved version in the direct complaint, above referred, does not cite any eye-witneses of the Wardat except the three accused herein for out of the others, neither Mohammad Umer Makrani nor Medical Officer R.H.C. Digri were present at the site. The natural witnesses could have been Mechanic Moosa Makrani at whose Motor Garage the applicant/accused was present or other persons available at the place of incident but none have been cited as witnesses creating further doubt in the veracity of the counter-case. It is contended that the pistol has been recovered from the Wardat but, speaking tentatively, that may purposely have been planted after suffering self-inflicted injury. As regards, the role of Mohammad Bux son of Zaika, who is said to have caught hold of the deceased, it is said that he did not cause any fatal injury to the deceased and should be enlarged. Reliance is placed on some case-law, where accused, who were not ascribed any role of inflicting fatal injuries have been allowed bails. This case, however, cannot be equated with any of the cited case-law. In the instant case Mohammad Bux son of Zaika facilitated the infliction of fatal injuries and was a participant in equal degree, if the prosecution case is to be believed. Even otherwise, the rules as to precedent do not apply to criminal cases with the same force as in the civil matters and, on principle, each such case is decided on its own facts.
18. ' In the foregoing view of the matter, the prosecution case does present IK the existence of material and circumstances, lading to a conclusion tha t easonable grounds exist for connecting the accused with the offence alleged. As such I do not see any justification for interfering with the order of refusal to grant bail passed by the learned Additional Sessions Judge. This application is, therefore, dismissed. The opinion expressed herein, however, shall have no binding effect in the trial of the case. .