Vide this judgment I propose to dispose of Criminal Miscellaneous No. 126/95 whereby Jazib Khan and others have applied for their release on bail in case F.I.R. No. 69 dated 4-3-1995 under section 302/324/34, P.P.C. And Criminal Miscellaneous No. 119/95 whereby Muhammad Taj and others have, applied for their release on bail in cross-case registered vide F.I.R. No. 70 dated 4-3-1995 under section 324/148/149, P.P.C. Police Station Ghazi.
2. As per F.I.R. No. 69 dated 4-3-1995 lodged in the Police Station Ghazi by Taj Muhammad brother of the deceased, Qasim Khan came to the house of Muhammad Nawaz and called him' out to negotiate on land dispute. He took him to the adjacent street where Sher Dil, Jazib and Haq Nawaz armed with `Churris' came there and Muhammad Nawaz was stabbed to death. The complainant, Saleem Khan and Nasir Hayat interested for separation who were also injured by Qasim, Jazib and Haq Nawaz. The motive as given in the report was civil litigation between them.
3. Jazib Khan in injured condition made a report vide F.I.R. No. 70/95 dated 4-3-1995 in Emergency Ward of R.H.C. Ghazi that there was a dispute between him and Muhammad Nawaz over a common 'Banna'; that on the eventful day he alongwith Muhammad Riaz, Muhammad Hayat and Sajid Ali went to the house of their uncle Khordil Khan for Eid greetings and when they were coming back to their houses they saw Khizar Hayat and Taj Muhammad armed with hatchets, Muhammad Nawaz and Muhammad Saleem armed with Klashnikovs and Jahanzeb armed with pistol. Khizar Hayat and Taj Muhammad injured the complainant, Muhammad Hayat and Khordil Khan with their hatches whereas Muhammad Riaz and Sajid Ali were injured by the firing of Muhammad Nawaz, Muhammad Saleem and Jehanzeb. The motive was the same as given in F.I.R. No. 69.
4. Both the parties on refusal of their bail applications from the lower Courts have approached this Court for their release on bail.
5. I have heard the learned counsel for the parties and have gone through the record of the case.
6. Learned counsel for the petitioners in Criminal Miscellaneous No. 126 of 1995 submitted that Jazib Khan petitioner in the encounter received eight injuries with sharp and blunt means whereas Muhammad Riaz, Muhammad Hayat, Khordil Khan and Sajid Ali were injured by fire-arms and sharp/blunt weapons. He urged that since there are cross-versions and at the present there is no evidence to ascertain as to which party has aggressed, which leaves a scope for further inquiry into the matter, hence the petitioners are entitled to be released on bail.
7. On the other hand, learned counsel in Criminal Miscellaneous No.119/95 argued that Jazib Khan etc. Came duly armed from a distance of over a kilometre and attacked Muhammad Taj etc. In front of their houses which would show that the later party was aggressed upon. He contended that no empty of klashnikov was found on or around the spot, so the allegation of the use of klashnikov stands falsified. He urged that the petitioners having acted in self-defence cannot altogether be excluded. According to him injuries sustained by the former party do not attract any offence falling within the prohibitory clause, and/or there being a cross-version, irrespective of the degree of damages sustained by either of the parties, the petitioners are entitled to bail.
8. Learned counsel for the State opposed both the bail petitions.
9. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of both the cases.
10. Without dilating much on the merits of either of the case, I am not inclined to exercise my discretionary power in favour of either of the parties. In view of the facts given in the two reports and the evidence on the record it is not advisable to adjudge at this stage as to who aggressed and who was aggressed upon. Besides the use of fire-arms, both the parties were armed, which indicate their pre-planning, with sharp-edged weapons which were freely and extensively used by them resulting into the death of one person and injuring three from the one side while injuring five from the other. Mere registration of cross-cases per se by the rival groups who have actively participated in the encounter, do not entitle them to the concession of bail. In view of the pronouncement of the august Supreme Court of Pakistan reported in 1985 SCM R 195, 382 and 1992 SCM R 501, the ground of `further inquiry' can only be pressed into service when there is a finding either by the police B officer or the Court that there are no reasonable grounds to hold that the accused are guilty of any non-bailable offence. Conversely there appears reasonable ground for believing that the accused in both the cases are guilty of IC non-bailable offence, hence they are not entitled to bail.
11. Consequently, both the bail applications i.e. Criminal Miscellaneous Nos.126 of 1992 and 119 of 1995 are dismissed.