1. ' This bail application has been moved on behalf of the present applicants who- have been sent up to stand trial along with other co-accused in case registered with police station Tangwani as Crime No, 54/87 under sections 302, 307, 148, 149, P.P.C. And 13D, Aims Ordinance.
2. ' Briefly the prosecution case as per F.I.R. Is that on the date of occurrence the present complainant party after offering Eid prayers had gone to the graveyard to offer Fateha for their ancestors where at about 10 O'clock in the morning the present applicants and five other co-accused all allegedly armed with guns came there and stood in front of the complainant party on which the complainant party are said to have asked them as to why they have come there as they are declared as Karo by them. On this all the said accused are said to have fired from their respective weapons at the complainant party with the result that whoever was being hit fell down. The accused party is alleged to have continued firing for about 15 to 20 minutes and then went away towards the eastern direction. The complainant then saw that Mirdost, Chakar and Ghulam Muhammad, his uncles, had died and others from the complainant party were injured. He also saw that of the other people who had come to the graveyard Nihal and an unknown person, Chachar by caste, had also died due to gunshot injuries while Abdul Karim, Datoo and Muhammad Murid were injured. The complainant then was helped by other people who provided transportation for him and he brought the dead bodies to the police station and lodged the F.I.R. The motive attributed is that about two months earlier one Nawab the cousin of present complainant had declared Duroo son of Ali Khan to be Karo with his -wife. This Duroo is said to be related to the accused party. The police after usual investigation arrested the accused and challaned them.
3. Initially 10 of the accused including the present applicants were granted bail by learned First Additional Sessions Judge, Kandhkot but the same was cancelled by this Court on technical ground that he should not have granted the said bail being in charge Judge for a very short time.
4. Subsequently bail application for the present applicants only was moved before the trial Court which was rejected and, therefore, this bail application.
5. ' I have heard Mr. Muhammad Hanif Mangi, the learned counsel for the applicants. He has submitted that the present applicants are entitled to grant of bail on the grounds that this is a case of counter-version as the accused party has also filed F.I.R. Against the present complainant party and it is to be adduced as to who had started aggression. He has further submitted that no specific role is attributed to individual accused and that injuries are caused on both sides which fact has been suppressed. Lastly the learned counsel has submitted that motive, if any, was available to the complainant party and not to the accused party as a relation of the accused party was declared Karo with the woman of the complainant party. He has placed reliance on .Case-law in support of the above contentions.
6. ' Mr. Muhammad Siddiq Kharal, the learned Addl. A.-G. Has vehemently opposed the bail application. He has submitted that this is a case where five persons have been killed and 13 injured.
7. He has further submitted that on the very face of it the present accused party were the aggressors as they had no reason to go to graveyard on Eid day duly armed with guns. He has further submitted that in such sort of a mass firing it would not be possible for-the complainant to name each individual as to whose shot hit whom. He has further submitted that only three persons from the accused party are said to have received injuries which fact is also mentioned in the F.I.R. And their names are given of whom only one Abdul Karim is said to have received a gunshot injury while the other two persons have admittedly received simple injuries caused by hatchet or lathi.
8. ' I have considered the submissions of the learned counsel for the parties. Of course in such mass firing from one side where 11 persons are firing in a graveyard where other private persons were also present, it cannot be possible for the complainant, who at that time was trying to save his life, to give the detail as to whose fire hit whom. With regard to the submission of the learned counsel for the applicants that this is a case of counter-version and it is yet to be adduced as to who had started the aggression, with utmost respect to the case-law cited by the learned counsel I am of the view that the facts of the present case clearly show that it was the accused party, 11 in number and all armed with guns who had come to graveyard after the complainant party had gone there.
9. It is specifically stated in the F.I.R. That all of them had fired which resulted in the death of not only three persons from the complainant party but also two other persons who were present in graveyard. The learned counsel for the applicants has cited the following cases:--
(1) Jaffar and others v. State 1980 SCMR 784.
(2) Wakeel Hassan v. State 1976 SCMR 159.
(3) Muhammad Shafi v. Hakam All 1978 SCMR 346.
(4) Muhammad Shafiq v. State 1982 P Cr. L J 91.
10. ' In the first case of Jaffar and others the facts were not similar to that of the present case as in that case there was only one deceased who had received five injuries out of which one was incised wound on his left forearm and there were more accused and as such it is yet to be explained as to who had caused that fatal injury. In the second case of Wakeel Hassan v. State there was a free fight between the parties and one shot was said to have been fired by the absconding accused during such course and the record did not reveal exact damage caused by the shot or shots fired by the petitioner. In the third case Muhammad Shafi v. Hakam Ali there were two persons from the accused side who had received the injuries in incident and one person was not mentioned as accused in the F.I.R. Who had also received the injuries which showed that there was suppression of certain facts on part of the complainant party. In the fourth case of Muhammad Shafiq v. State one person had lost his life from complainant side while grievous hurts were caused to others on both sides and there was nothing certain as to which of the two parties was aggressor and who had exceeded the right of private defence whereas there is no such fact or plea taken by the parties in the present case.
11. ' As stated above with all respects to the above said case-law I am of the view that the facts of those cases are different from this case and would not be applicable to the present case. It may also be observed that in criminal cases each case has its own peculiar features and attending circumstances and no two cases can be treated alike unless the same are on all fours applicable.
12. Lastly the learned counsel for the applicants has cited the case of Ludan v. State in which I granted bail earlier being Cr.B.A. No, 407/89. It may be observed that in that case the points taken into consideration were mala fides as subsequently the complainant party had filed a direct complaint wherein they had included the cases of some other persons who were not mentioned in the F.I.R.
13. And bail was granted to persons to whom no specific role was attributed. Similarly that case is also not applicable to the present case. With regard to counter-F.I.R. It may also be observed as pointed out by the learned Addl. A.-G. That first F.I.R. Lodged by the present complainant party was at 12-30 p.m. i,e, 2-1/2 hours after the incident had taken place and the distance of vardat from police station is about 16 kilo meters while the counter F.I.R. Lodged by the present accused party is at 2-15 p.m. On the same day which is 1-3/4 hours after the F.I.R. Of the present complainant party which obviously could be an afterthought in order to create a defence to the case of the present complainant party. In the said counter F.I.R. It is admitted by the complainant of the said F.I.R. That the said five persons had died. It may also be observed that it is not each case of counter-version where the bail is to be granted as a matter of right but the facts of the case are to be assessed on its own merits and it is to be seen if prima facie there is sufficient evidence to link the accused persons with the commission of the offence.
14. ' In these circumstances I am of the view that the present bail application has no merit and accordingly dismiss the same.