1. ' This is a bail application moved by the applicant Muhammad Khalid Butt who is involved in a case under section 302/324, Q&D Ordinance vide F.I.R. No,10/1992 of Police Station Sher Shah, Karachi. The bail application of the applicant was moved before the trial Court which was rejected by an order, dated 21st March, 1992. He has now come up before this Court with the same prayer.
2. ' Briefly the facts of the case are that complainant Ghulam Akber lodged the report with the police that on 19-1-1992 he alongwith Gul Faroz, Bashir, Gul Farosh and Orangzeb were taking Atta and goods from the shop of Swat Kiryana Store. They had kept the goods in Donkey Cart and were going towards their house. The complainant was driving the Donkey Cart and on the way accidentally the Donkey Cart side hit one boy who happened to be a relative of Lateef Butt Councillor. On account of this there was an exchange of harsh words between the boy and the complainant. In the meanwhile Lateef. Butt, Councillor also came out from his house immediately.
3. He told his sons not to spare the complainant and to kill him, on account of which his two sons namely accused Qaiser Ali alias Mitho (2) Ansar alias Papu having a rifle and Khalid Butt brother- in-law of Lateef Butt having a pistol in his hand attacked the complainant party. Qaiser alias Mitho fired at Gul Faroz on his chest and he fell down, while Khalid fired on the complainant which hit him on his back near the waist and thereafter the accused persons managed to run away, Gulfaroz died on the spot while the complainant was removed to Abbasi Shaheed Hospital. The police after usual investigation arrested the present applicant and also submitted the challan.
4. ' I have heard Mr. MA. Kazi, the learned counsel for the applicant. Mr. Jawed Haider Kazmi the learned counsel for the complainant and Mr. Zubair Qureshi, the learned counsel for A.-G. For State.
5. ' The learned counsel for the applicant has contended that there was no motive in this case, the incident has taken place all of sudden and there was no premeditation. He has further pointed out that on the bare reading of the F.I.R. It will appear that incident had taken place only because the Donkey Cart's side hit one boy which resulted in this quarrel. He further points out that the incident had taken place outside the house of the applicant and it was the complainant party who had started the quarrel as such the applicant had right of private defence also. In addition he further submits that the prosecution has not come out with true facts. He states that the true facts are that the complainant party kidnapped and kept applicant in wrongful confinement and finally released him on or about 4th March, 1992 after causing him injuries. The applicant was also medically examined in Abbasi Shaheed Hospital. He submits that for this kidnapping a report was lodged at the same police station on 2-1-1992 vide F.I.R. No,11/1992 by his brother in which the entire complainant party is shown as an accused.
6. ' On the other hand Mr. Jawed Haider Kazmi, the learned Advocate for the complainant has strongly opposed the bail application, he submits that the applicant is named in the F.I.R, specific part is assigned to him and in such circumstances the complicity of the applicant is fully established in the commission of this offence. He has placed reliance on reported cases (1) 1991 P Cr. L J 822, (2)
7. 1987 SCM R 788, (3) 1987 SCM R 1556, (4) 1986 SCM R 1146, he has therefore, prayed that the application needs no consideration and is liable to be dismissed. Mr. Zubair Qureshi the learned counsel for the State has also opposed the bail application. He has mostly relied on the arguments advanced by Mr. Jawed Haider Kazmi and in addition he states that section 34, P.P.C. Has been applied in this case and therefore, the applicant is not entitled to be released on bail.
8. After applying my mind to the facts and circumstances of the case so also to the contentions raised by the parties. I am of the considered view that the case is not free from doubt and the benefit of doubt is to be resolved in favour of the accused.
9. ' It appears that apart from the complainant Ghulam Akbar the other three material witnesses namely Gul Farosh, Bashir and Orangzeb who are also named in the F.I.R. And were star prosecution witnesses were not examined by the police immediately after the Wardat but in fact they were examined after about 21 days of the Wardat i,e. On 10-2-1992. No explanation is forthcoming as to why their statements have been recorded so late. The perusal of the police papers shows that even in the list of witnesses they are not even cited as prosecution witnesses. It is also evident from the F.I.R. That it was a chance encounter resulting in a sudden fight. The quarrel had erupted due to touching of the Donkey Cart's side to one boy and what actually transpired between the complainant party and the accused is also not clear. Even the Mashirnama of recovery of dagger indicates that the said dagger was found lying by the side of deceased which again has remained unexplained. It is also apparent from the record that the incident had taken place outside the house of the applicant and in this incident the allegation against the applicant is that he fired upon the complainant. It is also settled law that in sudden fight there is no question of common intention and each person is liable for his own individual act. In the present case the applicant is alleged to have fired with the pistol which hit the complainant on the left side of back of abdomen, this injury has been declared simple as confirmed by the learned counsel for the State. I am conscious of the fact that at bail stage only the tentative assessment of the C evidence is permitted and from this point of view I have looked into all the circumstances of the case and the case-law cited by the parties, I feel that there are circumstances indicating that it is a case of further enquiry specially considering the facts that it was a sudden fight and it had taken place outside the house of the applicant, the applicant is alleged to have caused simple injury, the material eye-witnesses kept silent for about 21 days without any explanation. In the kidnapping case of the present applicant all the material witnesses of this case are shown as accused, there was also a dagger found by the side of the deceased, as such, all these circumstances when combined together lead to an inevitable conclusion that it is a case which is not free from doubt.
10. ' I am, therefore, of the opinion that the case of the applicant requires further enquiry, within the meaning of section 497(2), Cr.P.C. Accordingly I enlarge the applicant on bail on his furnishing one surety in the sum of Rs, one lac and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.