1. ORDER f ABDUL RAHIM KAZI, J.- This bail application has been moved on behalf of present applicant who is involved in a case registered as FIR No. 53 of 1994 at Badin Police Station under Sections 302, 324, 337/D, Q & D Ordinance, 147,148, 149/114, PPC. The allegations against the applicant as per FIR are that the parties are on inimical terms and are at daggers drawn. It is alleged that for days earlier some people had entered the house of deceased Muhammad Yakoob and such matter was taken to Faislah before nekmards wherein one Maloo, the brother of present applicant was found guilty and, therefore, the accused was annoyed with the complainant party. On the date of incident at about 9 'o' clock in the morning when the complainant party had gone to their sugar-cane cultivation and when they reached in sugar-cane cultivation, the present applicant alongwith 5 others came there, of whom present applicant was armed with gun while co- accused Ali Nawaz had lathi in his hand and the others had hatchets. Co-accused Mehmood is said to have given lalkara 0n which the present applicant fired from his gun straight at the complainant Muhammad Umer who sustained head injuries. He also fired at deceased Muhammad Yakoob who died as a result of injuries sustained by him. The other accused are alleged to have given hatchet and lathi blows to P.W s. On the cries, people of village came there and the accused ran away. Such report was initially lodged with P.P.
2. Nindo at 1100 hours on 27.4.1995 and was subsequently incorporated in the book under Section 154, Cr.P.C, at Badin Police Station at 1230 hours on the same day. The police after usual investigation, arrested and set up the accused for trial. The bail application was moved on behalf of the co- accused who are granted bail. Subsequently the application for cancellation of their bail was moved before this Court being Cr. MA No! 150/1994 which was dismissed on 27.11.1994. Thereafter a bail application for the present applicant was moved before the Trial Court, it was rejected and therefore this bail application.
3. I have heard Mr. P.M. Amer, learned counsel for applicant while none is. Present for the State.
4. The learned counsel for the applicant has submitted that this is a counter case and a counter version to the case of the present applicant who had himself registered another FIR being a FIR No. 59 of 1994 which was also initially registered with P.P Mindo as non-cognizable at 1505 hours and subsequently incorporated in the 154 Cr.P.C. Book on 7.5.1994. From this, the learned counsel has argued that prima facie the two reports pertained to the same incident and therefore the present applicant would be entitled to the grant of bail as the matter pertains to counter-version and it is yet to be determined( as to who is the aggressor party. He has placed reliance on two cases one is: Aijaz Ahmed Karim v. The State (1994 P.Cr.L.J. ^096). The other case is that of Aftah Ahmed Khan v.
5. Hamid Hussan (1995 P.Cr.L.J. 552). Both the above cited cases have no bearing in the present case as in the first case the question involved was that the validity of the report subsequently lodged was yet to be determined whereas in the present case subsequently lodged report is that of the applicant himself. In the second ease, the point under consideration was that in the same incident the accused had also received a grievous injury whereas in the present case the accused has not received any injury. Even a plain reading of the two FIRs would show that the timings on which the incidents are said to have occurred are different, the places of incidents are different and the manner in which the incidents, allegedly took place and persons who sustained injuries are different, therefore it will be premature at this stage to make any observation with regard^to the two incidents being the same unless some evidence has come on record and the witnesses are subjected to cross-examination. The second point urged by the learned counsel is that the for accused were granted bail by the Trial Court and in the application for cancellation of bail, this Court also maintained the said order of the Trial Court and, therefore, rule of consistency requires that the present applicant should also be granted bail. There is no dispute about the facts but it may be observed that the earlier quoted order of this Court clearly shows that the incident had taken place in the open field where parties had come face to face and it was also observed in that order that the parties are at daggers drawn and thus it had get to be determined as to which of the two parties was the aggressor.
6. However in the said order, it was also stated that the present applicant who was armed with a gun had not moved for grant of bail. It may be observed that in such circumstances, when the incident took place on the spur of the moment, each person would be responsible for his own act and it would be determined only at the trial if all the persons would be liable by way of the abetment or to be charged with common intention. The FIR shows that it was the present applicant who had fired from his gun causing the death of Muhammad Yakoob and therefore unless any evidence is brought on record which could show otherwise, there can hardly be a ground for allowing bail to the present applicant.
7. Lastly, the learned counsel has submitted that the medical/post-mortem report shows that at the time the incident had taken place, the deceased had "digested food" in the intestine. He has stated that since the incident had taken place at morning time, it would be assumed that the deceased had already taken breakfast and therefore there could be no digested food in the intestine. I am afraid that unless the Medical Officer is put to cross-examine no such inference can be assumed.
8. Even otherwise it may be observed that amongst the agriculturist/haris class in this part of the country the practice is that in the morning time they come to the fields without taking breakfast and it is after some time when their food is brought to the fields by their womenfolk. Reliance can be placed in the case of Samata The State (1982 S.C.M.R. 208) wherein their lordships in similar case had maintained the order passed by the High Court refusing bail to the accused.
9. With the above observations, I find no substance in the present application which is accordingly rejected.