1. Muhammad Arshad, petitioner, seeks post-arrest bail in case registered on 19-11-1996 vide F.I.R.
2. No,441 of 1996 at Police Station, Saddar Mandi Bahauddin under section 302/148/149, P.P.C. on the statement made by Col. (Retd.) Muhammad Sadiq.
3. 2.According to this F.I.R., Muhammad Arshad and his father Bati together with Iftikhar and his father Inayat as well as Muhammad Aslam all armed with 12 bore guns accompanied also by Sikandar armed with a Sota came to the plot of land which the complainant had purchased from Mst.
4. Rasoolan Bibi. They first of all threw away the boundary wall bricks of the plot and thereafter started ploughing the same. Complainant's son Muhammad Abdullah Sadiq alongwith Allah Yar and Sarwar came there to restrain Arshad-petitioner and another from illegally ploughing their land. This resulted in an altercation between Muhammad Abdullah Sadiq on one hand and the aforesaid accused on the other. Allah Yar and Sarwar tried to intervene, at which Muhammad Arshadpetitioner, son of Bati fired with his 12 bore gun hitting Muhammad Abdullah Sadiq at the stomach. The second fire was shot by Bati which also hit Muhammad Abdullah Sadiq at the stomach. He fell down after receipt of the fire-arm injuries. Thereafter, Aslam gave a Butt blow to Allah Yar on the head and Sikander gave a Dang blow to Sarwar on his hand. Thereafter, they all ran away.
5. The motive behind this occurrence disclosed in the F.I.R. was that the complainant had purchased the share of land of Mst. Rasoolan Bibi which was jointly owned with the accused. He got this area demarcated by a brick wall. The accused were unhappy about this and on that account they had launched an assault resulting in death of Muhammad Abdullah Sadiq and injuries to Allah Yar and Sarwar.
6. 3.In the course of investigation, it transpired that Muhammad Arshad-petitioner, and Muhammad Inayat were also injured. They had received injuries both by fire arms and blunt weapons, but had not been explained by the first informant or the witnesses produced by him in support of his version set out in the first information report.
7. 4.The Investigating Officer recorded the statement of Muhammad Arshad (petitioner). While giving his side the story (Muhammad Arshad petitioner) stated that his father Bati owned 4 Kanals and 1 Marla of land jointly with Mst. Rasoolan Bibi daughter of Gaman. Her entitlement was only 10 Marlas.
8. Allah Yar son of Ghulam Qadir had deceitfully got the same transferred to himself.
9. Mst. Rasulan Bibi feeling aggrieved filed a civil suit against said Allah Yar.
10. It was further stated by him that on the day of occurrence, he alongwith his father Bati and his paternal uncle Inayat went to plough their above plot of land when Allah Yar son of Ghulam Qadir and Muhammad Abdullah Sadiq (deceased) armed with guns while Sarwar Aurangzeb, Anar, Qadir, Javed and Munawar all armed with Sotas came there and started to beat them.
11. Muhammad Inayat was given a Sota blow on the neck of Sarwar while Aurangzeb gave him a sota blow but he wielded off the same with the barrel of his gun. As a result of which his gun was broken.
12. He and Inayat started grappling with abdullah Sadiq. Allah Yar grabbed the gun from Abdullah Sadiq and fired at them. The pellets hit him as well as Muhammad Inayat and Abdullah Sadiq. In the meantime, Muhammad Aslam, his uncle, gave a Sota blow on the head of Allah Yar and the gun fell down from his hand. According to Arshad (petitioner), it was as a result of the fire shot of Allah Yar that Abdullah Sadiq had been killed.
13. On the above statement of Muhammad Arshad (petitioner), a cross case was set up and investigated as if it was an independent F.I.R. This version of the petitioner stood the motions of investigation and finally a challan was submitted in terms of the above statement on 6-6-1997, in the Court of Judicial Magistrate. Charge against all the eight accused has since been framed.
14. In this case the learned Additional Sessions Judge granted bail before arrest to seven of the accused referred to above. Allah Yar, who was assigned the role of having fired the shot, causing injuries to Arshad (petitioner), Inayat and the deceased-Abdullah Sadiq. He was however, latter granted bail after arrest in November, 1997.
15. 5.The accused arraigned in the F.I.R. lodged at the instance of Col. (Retd.) Muhammad Sadiq were also challaned in terms of the allegations levelled in the said F.I.R. The same is pending in the Court of learned Additional Sessions Judge, Gujrat. As both the sides are accusing each other for the murder of Abdullah Sadiq, the learned Additional Sessions Judge has ordered for the transfer of the challan submitted on the report of the petitioner from the Court of Judicial Magistrate to be tried along with the challan case based on the F.I.R. lodged by Col. (Retd.) Muhammad Sadiq.
16. 6.The learned' counsel canvassing for the bail of Arshad (petitioner), submits that the role assigned to him is the same as that to Bati, who has been granted bail by this Court already on the ground that there is only one fire-arm injury on the person of Abdul Sadiq and the same has been attributed to the petitioner as well as his father Bati. At the trial only, would it be determined as to who amongst the two were liable for this injury. It was as such the matter of further inquiry qua both the petitioner and his father-Bati. As Bati has been already granted bail by this Court, the petitioner is also entitled to bail on the principle of consistency. He relies on Abdul Salam v. The State (1980 SCM R 142), Muhammad Naseem alias Naseemo v. The State (1996 PCr.LJ. 1302) and Muhammad Ashraf v. The State (1997 MLD (Karachi) 2725) to argue that the principle of consistency is well-entrenched in our Corpas Juris.
17. In the alternatively, it has been submitted on behalf of the petitioner that as his injuries as well as those on the person of Muhammad Inayat have suppressed by the prosecution be-speaks for the fact that the complainant party was the aggressor and eight persons of the complainant party have been duly challaned by the police and charged by the trial Court.
18. 7.It is further argued that the learned Additional Sessions Judge has ordered both the challans to be tried together, obviously to resolve as to whether the petitioner, or Bati or for that matter Allah Yar was responsible for the solitary fire-arm injury suffered by Abdullah Sadiq (deceased). Allah Yar, who had alleged to have fired a shot resulting in the fire-arm injuries to the petitioner, his uncle Inayat and the deceased, was released on bail by the learned Additional Sessions Judge in November, 1997. It is urged that the law requires that parity inter se the parties ought to be maintained in the matter of grant of refusal of bail. According to Col. Muhammad Sadiq, Abdullah Sadiq was hit by the fire-shot of the petitioner and Bati his father whereas according to the case registered at the behest of the petitioner, it was the fire shot of Allah Yar which resulted in injury to him, Inayat and Abdullah Sadiq (deceased). The learned trial Court is seized of both the versions and it is in the event of trial Court that it would be determined as to whether, it was Allah Yar, who fired shot or it was the petitioner his father Bati, who had hit Abdullah Sadiq (deceased). Both Allah Yar and Bati were on bail. Applying the principle of parity, it would be equitable to grant the concession of bail to the petitioner.
19. 8.The learned counsel for the complainant, on the other hand, placing reliance on Abdul Hayee and 2 others v. The State (1996 SCM R 555) submits that this is no stage for deeper appreciation of evidence and determining the role of the accused in relation to the medical evidence. He further relied on Jazib Khan and 3 others v. The State (1996 M LD 166) wherein it was held that where both the parties were armed with fire-arms and sharp-edged weapons which were freely and extensively used by them resulting in the death of one person and injuring three persons from one side and five persons from the other side, it was not advisable to determine as to which party had aggressed. In this case, however, both the parties were refused bail.
20. 9.In the case in hand, however, the view in Jazib Khan's case (supra) cannot be applied because all the eight persons arraigned as accused by the petitioner have already been granted bail by the Trial Court. Two opposing factions are being accused for the death of Abdullah Sadiq. The two versions, in fact, mutually exclude each other. Moreover, the F.I.R. lodged at the instance of father of Abdullah Sadiq (deceased does not explain injuries suffered by the petitioner and Muhammad Inayat which incidentally happened to be both by firearm and by blunt weapon. All the accused belonging to the complainant party are on bail.
10. Considering all the above-referred circumstances and also to maintain parity inter se the parties as well as giving the petitioner benefit of the doctrine of consistency, he is admitted to bail provided he furnishes bail bond in the sum of Rs,2,00,000 (rupees two lac) with two sureties in the like amount to the satisfaction of the trial Court.
21. None of the observations made above would prejudice the case of either party during the trial which should be held expeditiously as required under Chapter 24-B of the Rules and Orders of the Lahore High Court.