' Petitioner Aftab Khan son of Yaqoob Khan stands charged for killing the father of respondent No,1 Hamid Hussain who had lodged F.I.R. No,880 on 24-9-1994 at 15-30 hours in Police Station B- Division Mardan against the petitioner as well as Gohar son of Haji Kabli, Gulzar son of Gohar and Arif son of Aftab under section 302/34, P.P.C.
2. The petitioner, in the first instance, approached the Court of Magistrate 1st Class, Mardan for bail.
However, his bail petition was rejected by the said Magistrate (Muhammad Akbar Raza) by his order, dated 18-10-1994. Not contended with the said order of the Magistrate the petitioner moved the Court of learned Additional Sessions Judge-II, Mardan (Ziauddin Siddiqi) for the redress of his grievances. The learned Additional Sessions Judge-II declined to release him on bail vide his order, dated 6-11-1994. Hence this petition.
3. Mr. Tariq Pervez, Advocate, for the petitioner, Mr. Muhammad Rehman Khalil, Advocate, for the respondent No,1 Hamid Hussain, complainant, and Mr. Tasleem Hussain, Advocate, for the State present and heard. Record of the case perused.
4. The brief facts of the case in hand, as disclosed in F.I.R. No,880, are that Hamid Hussain complainant, respondent No,1, lodged a report at Kalpani Pul wherein he stated that he alongwith his brother Amjad Hussain and Zafar Ali son of Hafiz Rashid Ahmad, residents of Muhallah Daggar, were standing in front of their shop and were talking to each other whereas, at that time, his father Muhammad Zaman was standing near the shop of one Mumtaz Ali. It was at 15-10 hours when Gohar son of Haji Kabli, Gulzar son of Gohar, Arif son of Aftab and Aftab son of Yaqoob (petitioner), duly armed with lethal weapons, arrived there and started firing at his father with the intention to kill him. It has been further alleged that with the said firing his father got injured and died on the spot. He further stated that since he and his companions were empty-handed, therefore, they could not do anything and the assailants, including the petitioner, escaped from the scene of occurrence. The occurrence was stated to have been witnessed by complainant Hamid Hussain respondent No,1 as well as his brother Amjad Hussain and Zafar All son of Hafiz Rashid Ahmad.
5. It may be mentioned here that on the same day another F.I.R. (No,881) was also registered in the same police station. This F.I.R. Was registered on the basis of Murasila which was recorded in the Casualty Ward of Mardan Hospital. The petitioner, Aftab son of Yaqoob, aged about 45/50 years reported to the police in the Hospital (Casualty Ward) wherein he alleged that he, alongwith his brother Muhammad All and his son Arif, was on his way to his house from the Mandi of Iqbal Khan situated at Par Hoti, when Abid, Hamid Hussain respondent No,1, Amjad sons of Muhammad Zaman and Zafar son of Rashid Ahmad waylaid them and fired at him, with the intention to kill him, with the result that he was grievously injured. The motive for the offence was stated to be an altercation which took place between him (petitioner) and respondent No,1 and his companions. The Murasila was scribed by Abdul Ghani, A.S.I., who was on duty at the Casualty Ward, Mardan Hospital, at the instance of the petitioner and in the presence of the Medical Officer. On the basis of this Murasila, F.I.R. No,881 was registered on 24-9-1994 at 15-40 hours.
6. It will not be out of place to mention here that in both the F.I.Rs, No,880 lodged by respondent No,1 and F.I.R. No,881 lodged by the petitioner, the time of occurrence has been given at 15-10 hours. The place of occurrence as mentioned in both the F.I.Rs, is also the same as is clear from the site plan appended with the relevant files.
7. The learned counsel for the petitioner, at the very outset, submitted that it is a cross-case in which respondent No,1 and his companions have already been released on bail and that, therefore, the petitioner should also be released on bail not as a matter of grace but as a matter of right, as he had also received fire-arm injuries which were grievous in nature. He further statd that a perusal of the record would show that there was no enmity between the parties and also that there was no material available on the file to show as to which of the parties had initiated the aggression. In this respect he drew my attention to a case Manawar Din v. Gul Zaman and another reported in PLD 1977 Pesh. 59 wherein it was held by his Lordship Mr. Justice Syed Usman Ali Shah as under:- "Ss. 497 & 498---Bail---Cross-cases, categories of.---[Bail---Crosscase]. There are three categories of cross-cases. The first would be in which out of the two parties, prima facie there is a case against one party to have initiated aggression on the other party and the latter party has acted in self-defence. The party that acted in self-defence would evidently be entitled to bail. The second would be in which two opposite-parties have by chance, come across and out of fear have assaulted each other. In that case, both parties would be entitled to bail on the assumption that they have acted in self-defence. The third would be in which two opposite-parties have indulged in the fight at the spur of moment. In that case, unless evidence is recorded, it has yet to be determined as to which party has committed aggression."
8. He further stated that the case in hand was a cross-case and the occurrence had taken place at the spur of moment and both the parties had sustained injuries. He contended that there was no doubt that the father of the complainant in F.I.R. No,881 had been killed with fire-arm injuries but at the same time, the petitioner, who had lodged F.I.R. No,881 was also grievously injured in the same transaction with fire-arm injuries. In the circumstances, according to him, the petitioner was also entitled to be released on bail. Reliance in this respect was placed on the following cases decided by His Lordship Mr. Justice Sardar Fakhar-e-Alam Khan and by His Lordship Mr. Justice Syed Ibne Ali, on 20-10-1987 and 29-5-1991, respectively:--
(1) Mir Qadir and others v. The State Criminal Miscellaneous No,700 of 1987.
(2) Aurangzeb and, others v. The State Criminal Miscellaneous No,285 of 1991.
9. On the other hand, Mr. Muhammad Rehman Khalil, learned counsel for respondent No,1 submitted at the Bar that the petitioner is directly charged in the promptly lodged F.I.R. (No,880) alongwith his co-accused for killing Muhammad Zaman and since there was no previous enmity between the parties, therefore, there was no ground for involving the petitioner falsely in the present case. According to him the present case had nothing to do with the case registered by the petitioner vide F.I.R. No,881. He stressed that this was not a cross-case and, therefore, the petitioner was not entitled to be released on bail.
10. Mr. Tasleem Hussain, learned counsel for the State supported the order of the learned Additional Sessions Judge-II and adopted the same arguments as that of the learned counsel for the complainant. In addition, in support of his contention, he placed reliance on the following cases:--
(1) Professor Muhammad Haneef v. The State 1979 SCMR 459.
"Criminal Procedure Code (V of 1898)---S. 497/498---Bail--Petitioner, according to F.I.R., came out with a .12 bore gun and fired with it resulting in injuries on forehead and face of deceased's sister-- -Stage of bail---Not one to sift prosecution evidence in minute details---Petitioner having injuries on his body and such fact showing his participation in occurrence---Two Courts below of view release of petitioner on bail being not justified and no legal or factual error discoverable in such approach---High Court also found to have examined distinguishing features of case of each accused and any principle of law warranting interference by Supreme Court in such matter not shown to have been violated---Petition dismissed in circumstances."
(2) Nisar Muhammad Wassan and another v. The State 1992 SCMR 501: "(a) Criminal Procedure Code (V of 1898), S.497(1)(2)---Penal Code (XLV of 1860), S.300, Exception 4 & 304, Part I----Bail---Sudden fight---Accused even in case of sudden fight had to establish all the conditions laid down in 5.300, Exception 4, P.P.C. To get the benefit of S.304, Part I, P.P.C. And when it was ultimately found to be applicable by rendering findings of absence of premeditation, cruelty, undue advantage etc. The sentence could still, in such a case, be life imprisonment---Such elements, therefore, were against the grant of bail rather than in favour thereof."
(3) Shahzaman and 2 others v. The State and another PLD 1994 SC 65: "(d) Penal Code (XLV of 1860), S. 302/34---Sentence---Common intention-Ingredients---Attack by armed persons on unarmed victims---Fact that F.I.R. Had not pin pointed as to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far as conviction on the basis of charge under S.320, P.P.C. Was concerned; except on question of sentence, if Trial Court believed evidence produced by the prosecution.
' When armed assailants attacked unarmed victim omission to pin point in F.I.R. As to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far conviction on the basis of charge under section 302, P.P.C. Is concerned, except on question of sentence, if trial Court believed evidence produced by the prosecution, section 34, P.P.C.
Envisages that if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone. In the present case in F.I.R. There was allegation that all three accused persons were armed with Lathis and Sarya and all of them inflicted injuries on the deceased. Everything depended on the intrinsic value of the evidence which was produced by the prosecution and it was for the trial Court to evaluate that evidence and come to the conclusion according to law."
11. After having gone through the record of the case, the arguments addressed by the learned counsel for the parties and the case-law cited at the Bar, I am of the view that the dictum laid down in case reported in PLD 1994 SC 65 is not attracted to the facts of the present case inasmuch as in that case the assailants had attacked unarmed victims. This is not the case in the case in hand. Here both the parties were allegedly armed with lethal weapons as is clear from the record. Similarly the facts in case reported in 1992 SCMR 501 were also quite different. In that case, significantly, in the second report the name of one Altaf Hussain was not mentioned at all.
12. It may be noted here that the learned counsel for the State submitted, at the Bar, that in the present case the name of respondent No,1 did not appear in the F.I.R. Lodged by the petitioner. I am afraid this is not the correct version. The name of respondent No,1, who had lodged F.I.R. No,880, does appear in F.I.R. No,881 lodged by the petitioner.
13. Similarly the facts of the case reported in 1979 SCMR 459 are different from the facts of the case in hand.
14. In my opinion the case in hand clearly appears to be that of second category, as defined in the case of Manawar Din v. Gul Zaman and another reported in PLD 1977 Pesh. 59 because the two opposite-parties, by chance, came across each other and it was out of fear that they had assaulted each other. As such the petitioner, who had also received grievous injuries, is entitled to be released on bail on the assumption that he might have acted in self-defence.
15. Without dilating upon the merits of the case at this stage and for reasons recorded above, I am of the view that the present occurrence is a result of cross-case and therefore, the petitioner is entitled to be enlarged on bail. Accordingly I admit him to bail.
16. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs,1,00,000 (one lac), with two sureties, each in the like amount, to the satisfaction of the Additional Registrar (Judicial) of this Court.
17. The Additional Registrar shall see that the sureties are respectable person, belong to the settled areas of N.-W.F.P. And are men of means having sufficient property in their names. The property documents/photo copies of the identity cards of the sureties must be obtained and appended with the bail bonds.