1. ' Applicants Ataul Mohsin, Muhammad Sanaullah, Ghulam Murtaza, Khadim Hussain and Ikram Hussain have moved for bail. They are facing trial in Court of the Sessions Judge, Karachi West, in Sessions Case No,106 of 1994 which is outcome of F.I.R. No,17 of 1994 of Police Station Surjani Town.
2. ' The said F.I.R. Relates to a clash between persons of Barelvi School of thought and Dev-Bandi School of thought. On 28-2-1994 at 6-00 a.m. Syed Masroor-ul-Hassan of Barelvi School of thought went forward to lead morning prayers in Noor Mustafa Mosque Sector 4-B, Surjani Town, Karachi.
3. This was resisted by persons of Dev-Bandi School of thought out of whom applicants Ataul Mohsin, Muhammad Sanaullah, Ghulam Murtaza, Khadim Hussain, Ikram Hussain and others who were armed with fire-arms and Dandas centered the mosque. Sanaullah pushed Masroor-ul-Hasan, who as Imam wanted to lead prayeRs, Ataul Mohsin incited his companions to occupy the mosque and to inform Mufti Sahib accordingly. Applicants Sanaullah, Ataul Mohsin and one Sajjad gave Danda blows to Masroor-ul-Hasan. Other culprits beat Syed Masudul Hassan and Syed Mehmood Ali. Masroor-ul-Hassan received injuries on his head and other parts. Mehmood Ali sustained injuries on his right arm, on both, shoulders and on his legs. Masood-ul-Hasan also sustained injuries. All the injured fell down, while the applicants and co-accused went away firing in the air.
4. The incident was witnessed by complainant Faizan and P.Ws. Akram Masood-ul-Hassan, Mahmood Ali, Qamarul Hassan and otheRs, Akram, Faizan and Qamar-ul-Hasan took the three injured to Abbasi Shaheed Hospital, where Masroor-ul-Hasan succumbed to his injuries. Such F.I.R. Was lodged by Faizan at 9-00 a.m.
5. ' On the same day at 1-00 p.m. There was counter-F.I.R. No,18 of 1994 lodged by co-accused Khadim Hussain against complainant Faizan and P.W. Akram. They were alleged to have caused injuries to Khadim Hussain while he was leaving Noor-e-Mustafa Mosque with Muhammad Ahmed and Khalil Ahmed. Injuries to Khadim Hussain were attributed to Faizan who was said to have fired with pistol at instance of Akram.
6. ' Mr. Gul Zaman Khan learned counsel for the applicant argued that according to the F.I.R. No,17 of 1994 Sanaullah, Ataul Mohsin and Sajjad gave blows to deceased Masroor-ul-Hasan with a Dandas but it is not known as to which of the three caused fatal injuries. It was next argued that the mosque in question was registered as a trust property and was named as Masjid Jamia Amir Moawiyah Trust Pakistan, Karachi with Muhammad Haroon, Muhammad Shafi, Muhammad Irtaza, Fasihuddin and Muhammad Zaheer as trustees and that Muhammad Faizan and others including the deceased, were aggressoRs, It was also argued that during the incident applicant Khadim Hussain was injured and he was complainant in the counter-case in which bail was granted to Muhammad Faizan. It was next argued that injuries sustained by Khadim Hussain were Suppressed in the F.I.R. No,17 of 1994 lodged by Muhammad Faizan. In support the learned counsel for the applicants cited the cases of (1) Ali Akbar Shah v. Banaras and others 1990 SCM R 1097, (2) Jaffar and others v. State 1980 SCM R 784, (3) Allah Dad etc. v. State 1983 PCr.LJ 2394(2), (4) Falak Niaz v.
7. Sher Dil etc. 1988 PCr.LJ 1038, (5) Nazir Ahmad v. State PLJ 1989 Cr.C. Lah. 53, (6) Mst. Shafiqan v.
8. Hashim All and another 1972 SCM R 682, (7) Shehzad Sultan alias Bhola v. State 1983 PCr.LJ 285 (8)
9. Muhammad Ashraf v. State NLR 1983 Cr.
10. 54.
11. ' Mr. Habib-ur-Rasheed, Advocate for Advocate-General for State argued that Sanaullah, Ataul Mohsin and Sajjad were all attributed one fatal injury sustained by deceased Masroor-ul-Hasan and hence they were to be given the benefit of doubt. Learned counsel for the State did not oppose grant of bail.
12. ' In the case of Ali Akber Shah 1990 SCM R 1097 accused and his father had received a number of injuries but the same had not been explained in the F.I.R. And in the circumstances grant of bail by the High Court was not interfered with. In the case of Jaffer and others 1980 SCM R 784 the material on record did not show as to which of the accused caused fatal injury, leaving room for consideration regarding common intention of other accused to kill the deceased and bail was granted. In the case of Allah Dad 1983 PCr.LJ 2394(2) fact that the accused in the counter-case were on bail, was considered to be good ground for grant of bail in the challan case. In the case of Falak Niaz 1988 PCr.LJ 1038 the High Court did not interfere with an order granting bail in a double murder case, on the ground that the record did not show as to who was responsible for causing fatal injuries to the deceased and there were counter-cases between the parties. In the case of Nazeer Ahmed PLJ 1989 Cr.C. Lah. 53 there were cross-cases and on the side of the complinant one person was killed and eight persons received injuries, while on the side of the accused nine persons received injuries and the fatal injury on person of the deceased was not specifically attributed to the accused seeking bail, and the question about possession of the disputed property was under dispute and the aggressor party was yet to be determined and bail was granted. In the case of Shafiqan 1972 SCM R 682 there were counter-versions and aggressor party was yet to be determined and bail was granted, with direction to the complainant to move the trial Court for cancellation of bail after some evidence was recorded. In the case of Shahzad Sultan alias Bhola 1983 PCr.LJ 285 there was no mention in the F.I.R. Or in the police statements about the receipt of injuries by the accused and there was no explanation for those injuries except that companions of the deceased may have caused injuries and in the circumstances bail was granted. In the case of Muhammad Ashraf NLR 1983 Cr. 54 one Investigating Officer found story of self-defence to be true, while the second Investigating Officer directed the challan to be filed and in the circumstances bail was granted.
13. ' While refusing bail to the applicants, learned Sessions Judge took view that each member of the unlawful assembly was armed with Danda when they entered the mosque and that clash between the parties is admitted and that the present case is not of such a nature in which any party may take advantage on the ground of aggression. In respect of the applicants, the view taken was that they came from outside and after entering the mosque they created ugly situation ignoring the sanctity and respect of the mosque and in the circumstances no generalisation was possible, to find out, as to, which party was aggressor.
14. ' Number of the persons who allegedly participated in the fight from the side of the applicants was more than 20. However, only three of the applicants allegedly gave "Danda" blows to the deceased.
15. According to section 149 of P.P.C., which has been made applicable, each of the members of unlawful assembly would be liable for act of any other member of that assembly. There is, however, no prima facie evidence about applicability of section 149 of P.P.C. The incident was abrupt. There is nothing to show if the applicants had prior information that the deceased would try to lead prayeRs, Use of Dandas shows that the intention was not to kill anybody. Deceased would not have received only one lacerated wound 8 c.m. x 2 c.m. (bone exposed) over left parietal region, if he was subjected to such beating as described in the F.I.R. There is force in the contention that it cannot be determined at this stage if the only injury on person of the deceased was caused by Ataul Mohsin or Sanaullah or Sajjad.
16. ' For the foregoing reasons applicants Maulana Ataul Mohsin, Maulana Muhammad Sanaullah, Qari Ghulam Murtaza, Khadim Hussain and Ikram Hussain alias Akram are granted bail in sum of Rs, one lac each with P.R. Bonds in the like amount to the satisfaction of learned Sessions Judge, Karachi West.