1. ' The facts leading to filing of this bail application are that Pir Muhammad Aslam filed F.I.R. At Police Station Jhudo on 11-8-1991, stating therein that he has lands in Deh 372. On that day he was informed by one Yaseen Kaimkhani at Railway Phatak that a fight had taken place between Ali Asghar, Ali Akhtar and Tigris in which his brothers, and Haris had received injuries. On hearing this he came to his village, where Muhammad Yaqoob met him in an injured condition, and was bleeding. Muhammad Yaqoob informed him that at about 9-30 a.m., Ali Asghar was taking out tractor from the Ottaque, when another tractor with a trolley in which about 50/60 persons were sitting came on the road. The driver of the tractor abused Ali Asghar, on which Ali Asghar asked him not to be harsh. On this 4/5 persons came down from the tractor. One of them was armed with a Lathi, other with an iron rod. Unarmed persons picked up bricks which were lying there; and they all gave injuries' to Ali Asghar on his head. On his cries (Muhammad Yaqoob), Ali Akhtar, Chetan, Ashraf Khan and other villagers came running, and tried to avert the' fight. In the meantime his (Muhammad Yaqoob's) wife Mst. Shameem all came. Assailants then picked up bricks, gave injuries to all of them, and then ran away. Complainant after this came to the Government Hospital, Jhudo, with Muhammad Yaqoob and his wife and saw his brothers Ali Asghar, Ali Akhtar and injured Chetan and Ashraf. Injured Ali Asghar was lying unconscious. Injured Ali Akhtar and other informed him that applicant Hayat who was armed with iron rod, Dost Ali and Rajo who were armed with Lathis, Muhammad, Khan Muhammad and Ali Hasan who had picked up bricks, gave them injuries. Complainant on hearing this came to the police station and lodged the F.I.R.
2. ' Police after investigation, challenged the case in .The Court. Applicant Ibrahim was granted interim bail before arrest by the Sessions Judge, Mirpurkhas, but subsequently it was not confirmed.
3. ' The present applicants along with other co-accused Dost Ali, Khan Muhammad, Rajo, Muhammad, Ali Hasan filed bail application in the Sessions Court, Mirpur Khas where bail was granted to other co-accused except the present applicants.
4. ' Learned counsel for the applicants contends that there are counter-cases, as such, it cannot be determined as to which party is aggressor. Name of applicant Ibrahim does not find place in the F.I.R., though the F.I.R. Has been lodged by the complainant after getting full details from all the injured. No specific part has been assigned to accused Hayat in the F.I.R. His role a signed in the F.I.R. Is same as that of the co-accused who has been granted bail by the lower Court. Hence, rule of consistency be applied in favor of the applicants.
5. ' Learned counsel for the complainant contended that both the applicants have been assigned specific role by the witnesses resulting to death of Ali Asghar, as such, this bail application is liable to be dismissed.
6. ' Mr. Muhammad Ashraf Leghari, Advocate for A.A.-G. For State concedes to the grant of bail to accused Ibrahim only, as his name does not appear in the F.I.R. Only one of the injured Ali Akhtar implicates him in 164, Cr.P.C. Statement whereas all other injured namely Muhammad Yagoob, Ashraf, Chetan, Mst. Shameem state that they did not know him earlier.
7. ' He, however, opposed grant of bail to applicant Muhammad Hayat on the ground that Muhammad Akhtar implicates him as one of the assailants who gave injuries to deceased Ali Asghar.
8. ' Heard the arguments of the learned counsels appearing for the parties, and perused the material available on record.
9. There are counter-cases between the parties in respect of the same incident. In a way the incident is admitted resulting to the loss of life of Ali Asghar and injuries to Muhammad Yagoob, Ali Akhtar, Chetan, Ashraf Khan, Mst. Shameem on the side of the complainant; and Dost Ali, Muhammad, Khan Muhammad, Rajo and Hayat on the side of the accused. It is pertinent to note that all the injuries sustained by the deceased as well as injured on both the sides, are result of hard and blunt substance. Deceased has three injuries; two are lacerated wounds while the 3rd is abrasion.
10. ' No earlier enmity between the parties is suggested in both the F.I.Rs, which means the incident has taken place without premeditation and all of a sudden on something which croped up there and then.
11. ' In cases of these nature each party tries to blame other side as aggressor and advances its own reason for the fight.
12. ' Even at the stage of bail though the Court cannot go minutely to determine the value of the evidence adduced by each party and motive alleged; but it can broadly look into it, in order to determine which party can be aggressor in the circumstances and in case if it cannot be determined as to which party is aggressor; then in the event of free fight who is the main person responsible for the murder.
13. ' This assessm ent will be purely for the purpose of bail and will not be considered at the time of final disposal of the case, as parties will be subjected to cross-examination at the time of trial to determine the veracity of their evidence.
14. ' According to the F.I.R. Of the complainant, motive for the incident was that tractor driver abused Ali Asghar, who asked him not to be harsh. On which he was given injuries. According to 161, Cr.P.C.
15. Statement of Ali Akhtar there was further motive that he had prevented accused Ibrahim from playing tape-recorder; on which he had threatened him to take revenge ' The motive as alleged in the counter-F.I.R. Is that the accused party was taking a dead body for burial. Pir Ali Asghar Shah who was driving the tractor came on the road before them, to whom driver Ibrahim asked to keep his tractor aside, and give them way. On which Ali Asghar, the deceased, abused the dead body resulting altercation between the parties. Ali Asghar went to his village and brought others to fight with accused resulting in the incident.
16. Comparing motives of both parties for the incident, one comes to the conclusion that motive and reasons for the incident as advanced by the accused look more probable. If the motive of the complainant party is to be believed then accused Ibrahim was the person mainly responsible for the incident. The F.I.R. Was lodged by the complainant after getting full information/facts from all the injured, name of accused Ibrahim should have been there; but strangely name of accused/applicant Ibrahim does not find place in the F.I.R. So, this will not be the motive as alleged by the prosecution.
17. ' Motive given by the accused looks more probable as any insult to dead body can provoke a fight.
18. ' In the counter-cases, F.I.R. Is very important if it is lodged imminently after the incident. In this case both the parties had lodged the F.I.Rs, immediately. F.I.R. Of the accused was recorded first.
19. ' The facts given in the 161, Cr.P.C. Statements can be an afterthought, if they are in contradiction with the F.I.R. As pointed out earlier name of the applicant Ibrahim does not appear in the F.I.R.
20. Name of applicant Hayat does appear in the F.I.R. But no specific part has been assigned to him.
21. The role assigned to him is same as that of the co-accused who has already been granted bail, and against whom no application for cancellation of bail has been filed. Except injured Ali Akhtar no other injured witness has implicated Hayat as the person responsible for giving injuries to deceased Ali Asghar. Hayat was arrested on 13-8-1994 while identification test has been held on 23-8-1994 that is ten days after the arrest; and no plausible/cogent reason is given for such delay.
22. ' In my opinion liberty of a man is to be jealously guarded as there is no compensation for the time which he has spent in jail if in the end he is acquitted of the charges. If one released on bail, and in the event if he is convicted, then he will serve the sentence and is punished for the wrong done.
23. ' It has been a constant view of our Courts that in counter-cases giving two versions of same incident, in which both the parties are injured and it cannot be safely determined that the accused are the aggressors and specially if the fight is started without any premeditation, then the bail is granted to bring both the parties at equal footing. This view has been held in Mst. Shafiqan v.
24. Hashim and others 1972 SCM R 682, Nadir and 2 others v. The State 1985 PCr.LJ 247, Muhammad Shafi v. Hakim Ali and 7 others 1978 SCM R 146, Manzoor v. The State 1992 PCr.LJ 561, Manzoor Hussain v. The State 1983 PCr.LJ 2140, Ghulam Farooque and another v. The State PLD 1989 Kar. 37, Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCM R 391 and Abdul Salam v. The State 1980 SCM R 142.
25. ' In view of the counter-cases and absence of name of Ibrahim and no specific part to Hayat assigned in the F.I.R., case is of further inquiry, regarding the guilt of the applicant and they are entitled for the grant of bail. Bail is granted to applicants on their furnishing one surety each in the sum of Rupees one lac and P.R. In the like amount to the satisfaction of the trial Court. However, the trial Court is at liberty to cancel the bail after some tangible evidence has come on the record warranting such cancellation. All these observations made in the bail application are tentative in nature and will not have any bearing on the case at the time of final hearing.