' Respondents Nos.1, 2 and 3 namely Muhammad an alias Juby, Zulfiqar All and Muhammad Ali Shah who are involved in a case under sections 302, 324, 504/34, P.P.C. Arising out of F.I.R. No,14/95 dated 22-3-1995 registered at Police Station Hatri, Hyderabad were allowed bail by the learned Vth Additional Sessions Judge, Hyderabad vide order, dated 2nd May, 1995. Through this application under section 497(5), Cr.P.C. Complainant Sardar Ali has sought cancellation of their bails. The English translation of the F.I.R. No,14/95 lodged by Sardar Ali reads as under:-- {{TABLE}} Crime No, Police Station Date and time of incident Date and time of report 14 of 1995 Hatri, District Hyderabad 22-3-1995 17-15 hours 22-3-1995 18-30 hours
1. Information: Sardar Ali son of Ghazi Khan, caste Chang, resident of Village Noor Khan Chang, Taluka and District Hyderabad.
2. Brief description of incident 302;324, 504, 34, P.P.C.
3. Place of incident and Goth Noor Khan Chang, Common distance from police Street, in front of house of accused station Muhammad Din alias Jubi in the South West Corner at a distance of about 10 K.M. Deh Mirzapur.
4. No delay in investigation.
5. Immediately {{TABLE}} ' The report is that I reside with family at the above-stated address. I am employed in H.D.A. We are six brothers and reside in one and the same house. Near my house Bahadur Chang, Sachal Chang, Sajjan Chang, Jhangli Chang and Azim Chang have got their houses opposite one another. We are easte-fellows. My brother Hussain Bux son of Ghazi Khan repair T.V. Antinas. Today in the evening Ali Raza son of Azim Chang took him with himself to his house for repairing T.V. Antina. Thereafter, Ali Raza along with Hussain Bux went on the roof of his house to repair Antina. In the meanwhile Muhammad Din alias Jubi son of Sajjan Chang abused Ali Raza and Hussain Bux from inside his house and said as to why they climbed the roof as the privacy of their house is infringed on which Ali Raza and Hussain Bux replied to Muhammad Din alias Jubi not to abuse and that they had climbed the roof of their house to repair Antina and we are not unrelated. We are coming down from the roof on which Muhammad Din alias Juby was infuriated and abusing brought pistol from his house and fired straight on Ali Raza and Hussain Bux who were still on the roof to kill them which missed them and Ali Raza and Hussain Bux shouting came down from the roof. On their hue and cry and noise of shots, I and my father Gazi, Liaqat Ali, Mushtar Ali, Nasrullah and other co-villagers came running. Then Din Muhammad alias Juby came out of his house alongwith pistol and called his relatives who on his call each one Zulfiqar Chang who was armed with country-made pistol of 12 bore, Muhammad All Shah was armed with country-made pistol of .12 bore, Yousaf Chang who had a hatchet came calling and on reaching fired straight shots on us. Muhammad Din alias Juby straight shot on my father Ghazi who was in front who fell down due to injury. Zulfiqar Chang and Muhammad All Shah fired straight shots from country-made pistols on my brother Sajjan and Yousaf caused hatchet injuries to Sajjan who had already fallen on ground. We and other co- villagers and accused gripped with one and other who were injured in the scuffle along with other co-villagers. Thereafter, the villagers requested them in the name of God, on which the accused went away firing shots. We saw that our father Ghazi and brother Sajjan had died due to fire-arm injuries. After that Liaqat Ali Chang and Afsar Chang took away the dead bodies of my father Ghazi Khan and brother Sajjan to L.M.C.H., Hyderabad and I have now appeared here to report that the above-stated accused without any reason have abused and fired from country-made pistols and hatchets and have murdered them and injured other co-villagers. I make a report, justice may be done."
(Sd.) Sardar."
' It would be relevant to observe that regarding the same incident yet another counter-F.I.R. Was also registered at the same police station as Crime No,15/95 in which Baradi son of Lakhano Shah is the complainant. The English translation of this F.I.R. Reads as under:-- {{TABLE}} Crime No, 15 of 1995 Police Station Hatri, District Hyderabad Date and time of incident 22-3-1995 17-45 hours
1. Date and time of report 23-3-1995 14-30 hours
2. Complainant Baradi son of Lakhano, caste Chang resident of Goth Noor Khan Chang, Taluka and District Hyderabad.
3. Brief description of offence 324, Q&D Ord., 148, 149, P.P.C. alongwith section
4. Place of incident and Common Street Noor Khan Chang, distance from police Goth, near house of Muhammad
5. Station Din Chang about 10 K.M. Deh
6. Mirzapur.
7. Steps taken No delay from police side. for investigation
8. Immediately. {{TABLE}} ' Report is that I have a retailer shop in Goth Noor Khan Chang. Yesterday on 22-3-1995 at about 17- 35 hours I was present at my shop where Syed Muhammad Ali Shah and Subhan Ali Chang came and said that Muhammad Din alias Juby is not well, let us go to enquire his welfare. I told them that they should go and that I shall come after giving articles to the customers. Shortly thereafter from the side of street towards the house of Muhammad Din fire reports and sound of commotion came.
I Lutuf Ali Chang, Akbar All Chang together ran towards the street, where we saw Ghazi Khan Chang, Sajjan Chang were lying on ground due to injuries and near them towards north Muhammad All Shah, Subhan All Chang, Zulfiqar Chang, Shafi Muhammad Chang, Muhammad Din alias Juby Chang, boy Hubdar All Chang and Mst. Naz Khatoon alias Nazia were also lying injured in the street where we saw that Sardar Chang, Saleem Chang, Mushtaq Chang and Ali Raza Chang had pistols in their hands. Muhammad Bux had a hatchet in his hand. Athar Chang had a double- barrel gun who were firing. Thereafter, I along with the said witnesses took the injured in a Suzuki to Civil Hospital and got them admitted there for treatment and was busy in attending them in the night. Now I have appeared and report that the parties have old enmity and yesterday on account of repairing Anita on the roof of Ali Raza, 2/3 persons had climbed who were told by Muhammad Din that his Pardah was infringed. They got down and fight started on account of abusing one another. I report, justice be done and letter for treatment be given.
(Sd.) Baradi."
' The learned trial Court after hearing the arguments of both the sides granted bail to the accused in Crime No,14/95. The operative part of the impugned order reads as under:- "I have considered the arguments. Accused Muhammad Bux, Mushtaq Ali and All Raza in counter- case have been granted bail vide order, dated 10-4-1995. In the counter-case as many as seven
(7) persons, including the present accused/applicants had received injuries by firearms and hatchets and have been admitted in the hospital, but except the applicants the other injured have not been shown as the accused in this case, nor it is mentioned in the F.I.R. Of this case as to who on the side of the accused party had received injuries. Therefore, it requires further enquiry, as to which a party was an aggressor. The accused in counter-case have already been granted bail.
Hence I grant bail to the accused/ applicants each in a sum of Rs,50,000 and with one surety and P.R. Bond in the like amount."
' I have heard learned counsel for the parties and have perused the record.
' Learned counsel for the applicants/complainant submitted that the F.I.R. Bearing Crime No,14/95 was promptly lodged and gives the true descriptions of the alleged incident. On the other hand the F.I.R. Bearing No,15/95 was lodged after more than 22 hours of the incident by Baradi and this was allegedly done after due deliberation and consultation. Even otherwise according to the learned counsel for the applicant the counter-F.I.R. Is belied by 161/164, Cr.P.C. Statement as well as the Medical Certificate. He further submitted that crime weapon and empty were recovered from the possession of respondent/accused Muhammad Din alias Juby and his accomplices while no crime weapon or empty was recovered from the possession of the complainant party. He also submitted that from the record it is clear that the deceased and their relatives did not commit any aggression and there is hardly any case for further inquiry but the learned trial Court did not apply his judicial mind to the facts of the case which has resulted in miscarriage of justice by passing the impugned order. In support of his submissions learned counsel for the applicant cited the following case-law.
(a) Shahzaman and 2 others v. The State PLD 1994 SC 65: In this judgment leave was granted by the Honourable Supreme Court to consider whether the High Court was justified in cancelling the bail and whether bail of all the three accused should have been cancelled. It was held that while deciding the bail application before recording of evidence in the trial Court, only tentative assessm ent is to be made for the purpose of deciding bail application and it is not permissible to go into the details of the evidence one way or the other because that might prejudice the case of one party or the other. It was further held as under:-- "Section 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C. But there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, P.P.C. And acquitted or convicted for a lesser offence. In the instant case the fact that in F.I.R. It is not pin-pointed as to which appellant had what weapon and who caused the fatal injury, would not alter .The charge on conviction if prosecution evidence is believed and may have some effect only on the quantum of sentence."
(b) Faridullah v. Muhammad Niaz and 6 others PLD 1995 SC 54: ' In this judgment in a murder case the Honourable Chief Justice of Peshawar High Court granted bail to respondents Nos.1 to 6 on the ground that in the occurrence where both the parties clashed, it was difficult to pinpoint the real persons who had fired effective shot and who raised Lalkara as there were thousands of people participating in the meeting. The petition for leave to appeal was converted into appeal by the Honourable Supreme Court and it was held:-- "F.I.R. Was lodged within 10 minutes of the incident while another F.I.R. Of the incident was also lodged by the Police. Officer who was present there and who apprehended the accused persons after hot chase and exchange of fires, within half an hour of the said incident. In the above said two F.I.Rs, lodged in the case respondent. No,6 was attributed instigation while respondents Nos.1 to 5 were specifically charged with the act of firing from their respective fire-arms. There was recovery of empties from the scene of offence and two weapons, namely, one klashnikov and .30 bore pistol, were also recovered from respondents Nos.3 and 4 respectively, who were apprehended at some distance from the scene of offence immediately after the incident alongwith two others. The police also recorded the statement of three eye-witnesses under section 161, Cr.P.C. Which fully supported the version in the F.I.R. In these circumstances, it was difficult to understand how the learned Acting Chief Justice reached the conclusion and it was a case of further enquiry and that it was not possible to fix the liability on anyone of the accused persons in the circumstances of the case. The version of the F.I.R. Lodged by the complainant Faridullah was clear and explicit and respondents Nos.1 to 5 have been attributed specific role of firing on the deceased persons which hit the deceased persons causing their instant death at the spot. The statements of three eye-witnesses recorded by the police under section 161, Cr.P.C. The recovery of two weapons from two of the respondents who were apprehended at some distance from the scene of offence alongwith two others after a hot chase and exchange of firing between police party and the accused persons, and recovery of empties from the spot do show that the investigation so far conducted in the case by the police prima facie connect respondents Nos.1 to 5, named in the F.I.R. With murder of two deceased persons, and therefore, we are unable to subscribe the view taken by the learned Acting Chief Justice while enlarging them on bail. However, with regard to respondent No,6 we may observe that he was not attributed any firing from his fire-arm on the deceased persons, and therefore, to the extent of his case we are not inclined to interfere with the discretion exercised by the learned Acting Chief Justice admitting him to bail."
' Learned counsel for the respondents Nos.1 to 3 submitted as follows:--
(a) That the Mashirnama of the place of incident clearly shows that the complainant party is the aggressor and on this points the impugned order is just and proper as the matter requires further enquiry.
' The learned counsel for the respondent cited the following case-law in support of his above submission:
(i) Allah Ditta and 10 others v. The State 1970 PCr.LJ 666,
(ii) Ellahi Bukhsh v. The State 1972 SCM R 683,
(iii) Ali Ahmed v. The State 1976 PCr.LJ 1323,
(iv) Abaidur Rehman v. The State 1977 PCr.LJ 204,
(v) M. Ashrafuddin v. The State 1977 PCr.LJ 530,
(vi) Rehmat All v. Hussain and 8 others 1978 SCM R 195,
(vii) Mitho v. The State 1978 SCM R 231,
(viii) Hadi Bux and others v. The State 1980 PCr.LJ 787,
(ix) Jaffar and others v. The State 1980 SCM R 784,
(x) Muhammad Shafiq and 2 others v. The State 1982 PCr.LJ 91,
(xi) Muhammad v. The State 1986 PCr.LJ 205,
(xii) Mir Hassan and another v. The State 1987 PCr.LJ 1336,
(xiii) Ghulam Ahmed alias Gulzeri v. The State 1987 PCr.LJ 2330,
(xiv) Ghulam Farooque and another v. The State PLD 1989 Kar. 37,
(xv) Manzoor Ahmed v. The State 1992 PCr.LJ 561.
(b) That regarding the alleged incident both the parties have lodged F.I.Rs, as there are counter- cases and two versions of the incident.
' The principle of parity would entitle the respondents to grant of bail when in the cross-case the accused were also granted bail.
' The learned defence counsel cited the following case-law in support of his submissions:
(i) Muhammad Aslam and 5 others v. The State 1975 PCr.LJ 125,
(ii) Muhammad Boota and 5 others v. The State 1978 PCr.LJ 300, Basharat All and Zakir Hussain v.
The State 1993 M LD 159,
(iv) Muhammad Hussain v. The State 1993 PCr.LJ 623,
(v) Lal Din v. Bashir. Ahmed and 5 others v. The State 1994 SCM R 454,
(c) that even at bail stage if any benefit of doubt arises it must go to the respondents/accused as was held by the Honourable Supreme Court in the judgment reported as Amir v. The State PLD 1972 SC 27;
(d) that consideration for grant of bail and cancellation thereof are altogether different. Therefore, once bail is granted by the Court of competent jurisdiction then strong and exceptional ground would be required for cancellation thereof as was held by the Honourable Supreme Court in the judgment reported as Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and in this case no exceptional or strong circumstances exist to cancel the bail.
' After having carefully examined the above submissions and keeping in view the principles laid down in the cited cases, I find considerable force in the submissions of the learned counsel for the applicant/complainant.
A plain reading of F.I.R. No,15/95 belies the claim of the respondents that it is a case of aggression.
Even otherwise this F.I.R. Was lodged after the lapse of more than 20 hours for which no explanation has been offered. On the other hand F.I.R. No,14/95 was lodged by the applicant/complainant promptly and specific roles have been attributed to the respondents/accused which were found correct during investigation. The Mashirnama of Wardat, medical evidence and the recoveries lend support to the complainant's version. Therefore, on a tentative assessment of evidence available with the prosecution, there exist reasonable ground to believe that the respondents were involved in a case which falls within the prohibitory clause of section 497, Cr.P.C. Merely because both sides sustained injuries or that respondents sides also sustained injuries would not make it a case of further enquiry. Therefore, the operative part of the impugned order passed by the learned trial Court is not supported by any material evidence on record. I am quite mindful of the fact that to deprive a person of his liberty on post arrest bail is a very serious matter but it is equally important to remember that in the interest of justice th e principles embodied in the Provisions of section 497, Cr.P.C. Are also required to be followed in letter and spirit by keeping the view and circumstances of each case. Learned counsel for the respondents urged repeatedly that the complainant party was the aggressor but the case-law cited by him supports the proposition that when there are cross- cases and members of one party are on bail then it would be a case of further enquiry to ascertain as to which party was aggressor and the accused would be entitled to bail. As observed earlier prima facie, there is ample evidence to connect the respondents with the alleged offences.
Therefore, they are not entitled to the concession of bail. Accordingly this application is allowed and bail is cancelled. They shall surrender to their bail bond and be sent to jail as under trial prisoners in the case bearing Crime No,14 of 1995.
Bail cancelled.