' SALEEM AKHTAR, J.---The petitioners seek leave to appeal against the order of learned Single Judge of the High Court of Sindh by which their bail application was rejected.
2. The complainant lodged report against the petitioners under F.I.R. No,155 of 1990 at Police Station, Kot Diji, district Khairpur alleging that he alongwith his brothers Abdul Sattar and Abdul Ghani were proceeding towards village Haji Gulab. When they reached the land of complainant's nephew they found co-accused Hakim Ali and Pirano armed with Lathis grazing their cattle in the field (of complainant's nephew) and, thus, damaging his cotton crops. These co-accused were asked to remove the cattle and on their refusal the complainant and his brothers took out the cattle from the field and were taking them towards the cattle pond when the said two accused called their relatives. On their call about 17 persons named in the F.I.R. Including the petitioners came armed with hatchets and Lathis and attacked the complainant party resulting in the death of Abdul Sattar and Abdul Ghani, brothers of the complainant. Niaz Hussain was armed with gun while each petitioner was holding a hatchet. When the petitioners' party attacked, the complainant party raised cries which attracted several persons named in the F.I.R. Who came running and intervened with Holy Qur'an. The petitioners' party then went away to their house with their arms. It was specifically alleged that Niaz Hussain s/o Yousuf Wassan caused hatchet blows upon the head and right leg of Abdul Ghani while Nasir Muhammad gave hatchet blow to the head and right leg of Abdul Sattar.
3. About after one hour of the incident one Ghulam Sarwar belonging to the petitioners' party also lodged a counter-report in the same police .Station under Crime No, 156/90 under sections 307, 323, 147, 148, 149, P.P.C. And 13-D, Arms Ordinance in which it was alleged that complainant's brothers Hakim All and Pirano had gone to the land of Wazir Hussain Wassan for grazing the cattle.
At about 6-00 p.m. On 19-6-1990 their cries were heard who were calling them. On their call and cries complainant, his brother Ata Hussain s/o Ghulam Nabi, Nazir Muhammad, Ghulam Murtaza Wassan, Muhammad Suleman s/o Moharram Wassan, Inayatullah s/o Saifal, Abdul Hameed s/o Arbab Ali Wassan went running towards the land of Wazir Hussain. Abdul Ghani had revolver in his hand, Abdus Sattar had hatchet, while Ghulam Hussain, Dur Muhammad, Karim Dino, Mushtaque, Sain Bux and three unknown persons of the same caste of Rind were armed with Lathis. Sain Bux Rind fired upon Atta Hussain Wassan, Abdul Sattar caused hatchet blow to Nasir Muhammad Wassan, Mushtaque caused Lathi blow to Inayatullah. On this commotion and cries neighbours also arrived and brought Holy Qur'an upon which the assailants stopped fighting. It was stated in the F.I.R. That on enquiry from Hakim All and Pirano Wassan they stated that the cattle were spoiling the crop of Mushtaque Ahmed upon which Abdul Ghani had asked them to remove but he did not agree and, therefore, Abdul Ghani and others were taking the cattle to the cattle pond when they rasied the cries.
4. The petitioners filed application for bail before the leaned Sessions Judge which was dismissed.
They then filed it before the High Court which was also dismissed by learned Judge in Chamber by the impunged order.
5. Mr. Nuruddin Sarki, the learned counsel for the petitioners,contended that there was no premeditation and it was a case of sudden fight in a field where both the parties had attacked each other. He further contended that the complainant concealed the fact that there was a fight amongst them and lodged the report against the petitioners and his party. From the facts and allegations in the F.I.R. It seems that Abdul Sattar and Abdul Ghani were taking the cattle to the cattle pond as Hakim All and Pirano were grazing them in the field of the nephew of Karim Dino (complainant) and damaging the cotton crop. This caused annoyance and the accused called his fellowmen who came armed and fighting started between them. In the report the petitioners have been assigned specific role for causing death of two persons.
6. The F.I.R. Lodged by Ghulam Sarwar has reflected the facts that a fight had occurred between these two parties at the place of occurrence in the field. Significantly in the second report the name of Altaf Hussain does not appear. There is no denial of the fight between the parties. According to the first complaint of Karim Dino the petitioners were present and had taken active part as stated above.
7. In view of these facts can on the ground of sudden fight as argued by the learned counsel for the petitioners bail be granted. Similar question came up for consideration in Iqbal Hussain v. Abdul Sattar and another PLD 1990 SC 758, and it was observed:-- "Even if it is considered as a fight it is still a long way for the accused to establish all the conditions laid down in Exception 4 to section 300, P.P.C. To get the benefit of Part I of section 304, P.P.C. And even if that is ultimately found to be applicable by rendering findings of absence of premeditation, cruelty, undue advantage etc. The sentence can still, in this case, be life imprisonment. These elements, therefore, were against the grant of bail rather than in favour thereof."
' This observation equally applies to the facts and circumstances of the present case. The learned counsel also contended that it was a case of further enquiry as there has been a fight between two groups.
8. Be that as it may the fact remains that specific role has been assigned to the petitioners for causing death of two persons. The meaning of the term `further enquiry' as used in section 497(2), P.P.C. Was explained in Iqbal Hussain's case (supra) as follows:- "It may straightaway be observed that this Court has in a number of cases interpreted subsection
(2) of section 497, Cr.P.C. Which, with respect, has not been correctly understood by the learned Judge in the High Court nor has it been properly applied in this case. While he thought it was a case of further inquiry which element, as has been observed number of times in many cases, would be, present in almost every case of this type. The main consideration on which the accused becomes entitled to bait under the said subsection is a finding, though prima facie, by the police or by the Court in respect of the merits of the case. The learned Judge in this case avoided rendering such prima facie opinion on merits as is mentioned in subsection (2) of section 497, Cr.P.C. And relied only on the condition of further inquiry. This approach is not warranted by law. Hence, the case not being covered by subsection (2) of section 497 Cr.P.C., the respondent was not entitled to bail thereunder as of right."
Similar view was expressed in Mst. Bashiran Bibi v. Nisar All Khan and others PLD 1990 SC 83. In the face of the facts stated in both the F.I.Rs, and also as is obvious from the order of the learned Sessions Judge that the deceased's body was found on the land where fight had taken place and the recovery of hatchets, prima facie support the averments made by the complainant Karim Dino.
Under these circumstances and on the material available prima facie opinion on merits in favour of the petitioners cannot be given at this stage and, thus, the question of further enquiry does not arise. In these circumstances merely because there are cross F.I.Rs, or cross-cases against each other cannot be a ground for grant of bail. Besides this both the Courts below have exercised their discretion and refused to grant bail. The Supreme Court is reluctant to interfere with such discretion unless it is exercised contrary to the principles laid down by this Court, is in disregard of the principles governing the administration of criminal justice and/or is perverse. Reference can also be made to Hafiz Khuda Bux v. The State PLD 1988 SC 413, Arbab All v. Khamosi and others 1985 SCM R 195, Shahadat All v. Mubarak Shah and another PLD 1986 SC 347, and Mst. Bashiran Bibi v.
Nisar Ahmed Khan PLD 1990 SC 83. We, therefore, dismiss the petition.