The applicants along with one Haji Usman are committed for trial before the learned Sessions Judge, Nawabshah for offence under sections 147, 148, 302, 323, 324, 325 read with section 149, P. P.
C. For the murder of one Allah Obhayo and causing injuries to three other persons. The alleged Incident had taken place on 15-12-1971 at about sunset time and the report was lodged the next morning. The injuries to the deceased and others are alleged to have been caused by hatchets and blunt weapons. With regard to the same incident two F. I. Rs. Were filed on the same day i.e. 16- 12-1971, first by Uris on behalf of the deceased party and the second by Ahmed on behalf of accused party at about 13 hours. The reason for filing the two F. I. Rs, was that both the parties in the fight sustained injuries. The parties are common harris i.e., tenants of Haji Karim Shah, and relatives inter se as well. The fight has taken place as alleged on the turn of water. It is stated in the F. I. R. Exh.
A-1 filed by Uris on behalf of the complainant that while he was in his house at sunset time, one Gulab Machhi had let the water flow in his Lucerne-cultivation, when his sister's son Obhayo went to receive his turn from him. After a short while there was a commotion to that side and his son A.I Nawaz came and informed him that Haji Usman and others are quarrelling with Obbayo and Alam over the question of water. The complainant, his son, A.I Nawaz, Moula Bux WOW and his wife Mst.
Saphooran, Arab Khokhar and other persons rushed towards the scene, where they saw the accused party namely, Ismail, Yousaf, Ahmed, Usman and Faqiro armed with hatchets, abusing Obhayo and others. Haji Usman was inciting them upon which accused Juman and Faqiro dealt with sharp-sided hatchet blows to Obhayo on the back of his neck, who fell down and therefore, the quarrel ensued. In the quarrel it is alleged, the accused gave blows to Alan and his cousin Ghulam Haider. It was further stated in the F. I. R. By the complainant that on enquiry Obhayo stated that "I asked Gulab (for the turn) of water but Ahmed refused. Thereupon we exchanged hot words.
Then, Alan and Ghulam Haider also remon--strated with them, but there followed the exchange of harsh words between us. On your arrival, the accused have given us blows at the incitation of Haji Usman."
2. The applicants previous bail application was rejected by the learned Additional Sessions Judge, Nawahshah on 22-11-1972, mainly, on the ground that the applicants' previous bail application was dismissed by his predecessor and that there was sufficient evidence in the committal Court against the applicants and that each applicant will be equally liable for the act of his companions under section 149, P. P. C. As well.
3. I have heard Mr. Naimuddin; counsel for the applicants and Mr. Usman Ghani, Assistant Advocate-General for the State. It was argued by counsel for the applicants that the applicants are entitled to be released on bail because at the time of incident as it revealed from the prosecution case, deceased Obhayo had pressed for taking leis turn of water which was refused to him arid thus it was the complainant party who got enraged and were the first to attack the accused side and this aspect of this case has been completely lost tight of by the learned Additional Sessions Judge while refused the bail. It was next argued that as is revealed from the F. I. R. And the statement that the fight was almost sudden and not pre-planned and that is why both the sides suffered injuries, and the deceased Obhayo received injuries at the hands of applicant Faqiro and Jumen and not of the others and that the entire members or the family of the accused party have been involved in this case. Haji Usman is father while accused Nos. 3, 4 and 5 are his sons and accused No. 1 is his son-in-law and that the accused have been in custody for the last more than one year and the trial will take further a long time before the learned. Sessions Judge and keeping of the applicants in jail in the circumstances is not justified. On the other hand the learned Assistant Advocate-General opposed the bail and he argued mainly on the ground that as the committal order has already been passed and the bail application has been rejected by it he learned Additional Sessions Judie, the applicants are not entitled to, the grant of bail. Counsel for the applicants, however, in reply to this argument relied on Akbar Din v. The State (1970 P Cr, L J 559) wherein the three persons accused to a murder case were released on bail and it was held that committal of accused to Sessions Court does not per see bar consideration of question whether reasonable grounds exist for believing that accused was guilty of offence punishable with death or transportation for life. Magistrate's pinion as to primer facie nature of case cannot have binding effect on superior Courts. It was further held that in a free fight between two parties resulting in death of, one person, some accused carrying dangs and some hatchets but only blunt side of hatchets used injuries on deceased stances as to head also caused by blunt weapon, determination as to who caused injuries resulting in death not possible in circumstances and mete fact of accused persona carrying of hatchets would not disentitle them to bail, culpability of each assailant may ultimately be found to be only individual-
4. From the medical evidence it appears that three parsons from each side have sustained injuries.
From the applicants' side Ismail, Faqiro and Ahmad and from the other side peero. Alan, Ghulam Haider, only Obhayo suffered some hatchet injuries, rest of the injuries on both the sides except Peero's simple injury ace said to have been caused by blunt weapons.
5. Without going through the merits of the case prima jack it appear that the fight took place after exchange of hot words between the parties who are relation inter se arid both sides have suffered injuries. There is specific mention in the F. I. R. That fatal blows were given by Faqiro and Juman and remaining applicants participated in the fight which prima facie appears to have occurred after exchange of hot words from bath the sides. However, this question as well as individual liability has to be ascertained by the trial this Court after recording of the evidence. Haji Usman, the sixth accused in Court this case has already been granted bail by the learned Sessions Judge and the applicants Ahmed, Ismail and Yousaf are his sons and no particular part is assigned to them in the regard to the causing of injuries to the deceased. I therefore, only for the sake of bail consider that there is some force in the argument of the learned counsel for the applicants. Keeping in view the principle laid down in the case cited and the arguments advanced I accept this bail application only of Ahmed Ismail, and Yousuf who are directed to be on furnishing surety of Rs. 25,000 and P. R.
In the like amount each, to released on bail the satisfaction of the learned trial Court. . However I reject the bail application of Faqiro and Juman who are alleged to have given the fatal blows. The learned trial Court however, is at liberty to cancel the bail of these three applicants after recording some evidence if he comes to the conclusion that doing so is to the interest of justice.