' The petitioners accused in case F.I.R. No,135/94, dated 22-5-1994 under section 365/379/337- A(II)/337-F(iv)/148/149, P.P.C. Registered with Police Station Mamoon Kanjun, seek bail after arrest after the refusal of the same by the learned Additional Sessions Judge, Summandri vide his order, dated 10-7-1994.
2. The facts of the case, in brief, are that on 22-5-1994 when the inhabitants of Chak No,198/JB, Tehsil Summandri were busy in celebrating Eid festival, a quarrel took place between two factions of the Chak. Both sides used their respective weapons in the quarrel and caused injuries to their opponents. The petitioner party reported the matter to the police about the occurrence and got a case registered bearing F.I.R. No,133/94, dated 22-5-1994 under section 324/337-F(ii)/452/148/149, P.P.C., stating that while they were celebrating Eid festival with their womenfolk, the accused launched an attack on them by raising Lalkara that the petitioner party is blaming Muhammad Pervaiz Akhtar, having illicit relations with Mst. Kalsoom and they started dragging Mst. Nurgas and on the resistance of the petitioners, they began to belabouring them and during the scuffle, the petitioners snatched some of their weapons and caused them injuries also in their self-defence.
3. The story narrated by the complainant of the instant case was that after offering Eid prayer Muhammad Pervaiz Akhtar when wanted to sacrifice their he-goat, it was found missing. He went outside in search of he-goat and when reached near the Dera of the petitioners' party, they came out of their house raising Lalkara that they will teach a lesson to the complainant for having illicit liaison with Mst. Kalsoom wife of Arif Ali, petitioner and they began to drag him inside the house and started beating. On his hue and cry his companions came for his rescue, but they were also held by the petitioners and belaboured badly and that on the intervention of the other inhabitants of the village the matter was over, and that they also caused injuries to the accused in their self-defence.
4. The police did not arrest any person of accused of F.I.R. No,133/94 and they managed to get interim pre-arrest bail order, whereas they arrested the petitioner party and sent them to judicial lock-up. They moved for post-arrest bail and the learned Additional Sessions Judge, Summandri accepted the petition of one of their co-accused namely Khurshid All and the petition to the extent of rest of the petitioners was dismissed. Hence this petition.
5. On 18-8-1994, the petitioners were allowed interim bail to enable them to join the investigation, so that the case-may be completed expeditiously. Today they are present alongwith their learned counsel.
6. The learned counsel for the petitioners submits that the occurrence is admitted, time, place and participation is also admitted, both the parties reported the matter to the police in their own way, both sides received injuries at the hands of their opponents, so it cannot be said at this time that which party was aggressor, so the case is of further inquiry and in this view of the matter the petitioners are entitled for the concession of bail. Reliance in support of his contention is placed on Rehmat All v. Hussain and 8 others 1978 SCMR 195 and Muhammad Shah v. Hakim All and 7 others 1978 SC MR 346. It is further contended that the accused of the cross-case are on pre-arrest bail whereas the petitioners while treating discriminately, were refused the post-arrest bail and submits that the petitioners are also entitled for similar treatment. Refers Bahadur and 9 others v. State 1975 P Cr. L J 162. It is added that after deletion of sections 365 and 379, P.P.C. The case of the complainant has become doubtful and the sentence of remaining sections is not more than ten years which do not fall in the prohibitory clause of section 497, Cr.P.C. And the discretion of bail may be exercised in favour of the petitioners as was done in Mansha Khan and 2 others v. The State 1977 SCMR 449.
7. On the other hand the learned counsel for the complainant party submits that in fact the petitioners were the aggressors and they caused more injuries grievous in nature to the complainant party and that they reported the matter first to the Police Post Muridwala but the petitioners managed to get a case registered direct at the Police Station Mamoon Kanjun showing the same prior in time. He submits that the petitioners do not deserve any leniency and their bail petition may be dismissed.
8. The learned counsel for the State also opposed the bail by endorsing the arguments of the learned counsel for the complainant. The Investigating Officer submits that the investigation is almost complete, only two persons from the petitioner side and one from the complainant side is yet to join the investigation and the final report shall be submitted very soon. He further submits that the petitioners have joined the investigation and got recovered their weapons of offence and that their persons are not required by the police any further for the purpose of investigation.
9. I have heard the learned counsel for the parties, learned State counsel, perused the record and gone through the case-laws.
Admittedly the case F.I.R. No,133/94, dated 22-5-1994 and 135/94, dated 22-5-1994 have been registered by the police in respect of one and the same occurrence between the same parties.
Both the parties have narrated the incident in their own way. The challan of the case statedly to be submitted against both the parties. The question remains as to who was the aggressor. The investigation is complete. The recoveries have been effected and the bail concession was not misused by the petitioners; rather they associated with the investigation and got recovered, the incriminating weapons used by them during the fight. The offence under section 337-A(ii)/337- F(iv)/ 324/148/149, P.P.C. Are punishable with, upto five years, 5 years, 10 years, 3 years respectively.
The bail cannot be refused merely because the offences are non-bailable. The members of both the sides have received the injuries. At this stage, nothing can be said with any degree of certitude as to which party was the aggressor. In this view of the matter, the position of the case can be sorted out only after recording the evidence in the Court. In such like case granting of bail is a rule and refusal an exception. I do agree with the precedent case of this Court and the pronouncement of the august Supreme Court referred by the learned counsel for the petitioners and am of the view that this is a case of further inquiry, enabling the petitioners for the concession of bail. So keeping in view the circumstances of this case, the ad-interim bail already granted to the petitioner is hereby confirmed. The petition stands disposed of.