1. QAZI MUHAMMAD FAROOQ, J.---On 3-4-1997 a gory incident of firing took place between two rival political factions at Female Polling Station, Government Girl Middle School Wazir Bagh which left behind three dead and three injured on one side and two injured on the other. When the dust settled down the dead and the injured were taken to the Lady Reading Hospital where two reports were made about the incident. The first report was made by one Sohail Siddique on behalf of the group whose two members had lost their lives as a result of which a case under section 302/324/353/34, P.P.C. read with section 4 of the Suppression of Terrorist Activities Act, 1975 and section 13, Arms Ordinance was regitered at Police Station Yakka Toot, vide F.I.R. No.278, dated 3-4- 1997, against Qamar Abbas, Kamal Hussain, Noor Muhammad and Asad Ali. The second report was made by Qamar Abbas against Shabbir Ahmad Bilour and his 6/7 unnamed companions on the basis whereof a case under section 324/148/149, P.P.C. was registered at Police Station Yakka Toot vide F.I.R. No.279, dated 3-4-1997. Three out of four accued nominated in F.I.R. No.278, namely, Qamar Abbas, Kamal Hussain and Noor Muhammad having failed to secure bail at the lower forum had moved this Court for the purpose but without any success a their bail plea was turned down on 25-8-1997 by a learned Single Bench of this Court. However, their Bail Application, bearing No.621 of 1997, was remanded by the august Supreme Court on 9-12-1997 for decision afresh by a Division Bench of this Court. We propose to dispose of by this common order the said bail application as well as an identical Bail Application No.39 of 1998 which was made subsequently by Kamal Hussain and Noor Muhammad who had not filed a petition in the Supreme Court against the order, dated 25-8-1997.
2. 2.The F.I.R., discloses that on the eventful day at about 12-10 p.m. the complainant Sohail Siddique alongwith Said Rasool, Iftikhar Khan Mattar, MPA, Shabbir Ahmad Bilour and Muhammad Khan went to the Female Polling Station Government Girls Middle School, Wazir Bagh in a car and found Qamar Abbas, Asad, Kamal and Noor Muhammad standing there duly armed with automatic weapons. They came out of the Polling Station after advising Qamar Abbas etc. not to stand among the ladies. Qamar Abbas alongwith his companions followed them and after initiating an altercation opened fire at them as a result of which Shabbir Ahmad Bilour and Muhammad Khan lost their lives. Simultaneously, Asad, Kamal and Noor Muhammad made firing due to which Amanullah Khan S.H.O. Police Station Yakka Toot was killed and two Constables Hashmat Khan and Jehanzeb and one Nisar were injured. The complainant escaped unhurt with bullet marks on his waist coat and shirt.
3. 3.The counter-version of the occurrence, contained in F.I.R. No.279, in brief is that the complainant Qamar Abbas being a contesting candidate in the Bye-election for Constituency No.NA-1 went to the Female Polling Station, Government Girls Middle School, Wazir Bagh alongwith Asad Ali in order to oversee the voting process. His party workers complained of bogus voting by means of fake National Identity Cards and the complaint was brought to the notice of the A.S.P. Suburb Circle and the Duty Magistrate Mastan Khan Wazir who had also arrived there. In the meantime Shabbir Ahmad Bilour accompanied by 6/7 persons came there and asked as to who was Qamar Abbas.
4. He seized Qamar Abbas by the collar and started a scuffle. Thereafter, he and his companions opened fire as a result of which the complainant, his nephew Asad Ali, a few police officials and citizens sustained fire-arm injuries.
5. 4.Qazi Muhammad Jamil, learned counsel for the petitioner Qamar Abbas, contended with vehemence that notwithstanding the number of casualties it was a case of further enquiry within the contemplation of section 497(2), Cr.P.C. because it was a trigger-happy affair and a sudden fight and in the face of the cross-case and counter-version of the same incident it was yet to be determined as to which party was the aggressor and which the aggressed. It was further contended that neither any weapon was recovered from the petitioner Qamar Abbas nor any empty was recovered from the point indicating his presence on the spot at the crucial time.
6. Another contention raised by the learned counsel was to the effect that the complainant had suppressed the injuries suffered by the petitioner Qamar Abbas and his nephew and except the interested persons none else including independent injured persons and son of the deceased S.H.O. had charged the petitioners. It was lastly contended that a case for bail on the principle of parity was also made out as the accused of the cross-case were on bail. Reliance wa placed on Hakim Ali Zardari v. The State and another (PLD 1998 SC 1), Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCM R 1845), Fazal Muhammad v. Ali Ahmad and 3 others (1976 SCM R 391), Bahadur and 9 others v. The State (1975 PCr.LJ 162) and Abdul Khaliq v. Niaz Khan and 4 others (1996 PCr.LJ 1612).
7. 5.Mr. Mujtaba Ali Hamdani, learned counsel for the remaining petitioners, adopted the arguments advanced by the learned counsel for Qamar Abbas and added that the investigation was dishonet on account of political pressure and the report of the Fire-arms Expert vis-a-vis the weapon of crime allegedly recovered from the petitioner Noor Muhammad was not positive.
8. 6.Barrister Zahoor-ul-Haq, learned counsel for the complainant, on the other hand, submitted that the application may be dismissed straightaway as complete challan had already been put in Court and the trial was about to commence. Reliance was placed on Said Akbar and another v. Gul Akbar and another (1996 SCM R 931). He next argued that the contention of further enquiry was not at all available to the petitioners because; firstly, specific role had been attributed to each of them, secondly, the assertions made in the F.I.R. were fully supported by the ocular and medical evidence, incriminating recoveries and positive report of the Fire-arms Expert and, thirdly, the petitioners and their co-accused were prima facie aggressors as they had launched the fatal attack on the complainant and his companions while they were going away from the Polling Station and apart from that it was evident from the statement of the petitioner Noor Muhammad recorded by the police that firing was started by Qamar Abbas etc. He also argued that the accused in the cross- case were granted bail on account of belated charge and the casualties suffered by the other side were suppressed in the F.I.R. made by the petitioner Qamar Abbas who and his nephew had not sustained any injury on a vital part of their bodies. Reference was made to Nasir Muhammad Wassan and another v. The State (1992 SCM R 501), Iqbal Hussain v. Abdul Sattar and another (PLD 1990 SC 758) and Allah Wasaya and 2 others v. The State (1980 PCr.LJ 105).
9. 7.The arguments put forward by the learned counsel for the complainant were supported by Mr. Muhammad Azam Khan, learned Advocate-General.
10. 8.It may be mentioned at the outset that although a practice has emerged over the years that plea of grant of bail is not considered when the trial is about to commence yet in the absence of an inflexible rule and explicit embargo such a plea can be raised and considered if there exits an exceptional circumstance. The exceptional circumstance in the present case is that the bail application of the petitioners which was decided on merits during the first round by a learned Single Bench, has been remanded by the august Supreme Court for decision afresh by a Division Bench. We, therefore, propose to decide the bail applications on merits.
11. 9.After giving the arguments addressed at the Bar our anxious consideration, we have come to the irresistible conclusion that it is not a fit case for bail. The petitioners are not only squarely charged with specific roles in the A promptly lodged F.I.R. for enacting the tragedy but the accusation is amply augmented by the ocular and medical evidence, incriminating recoveries and positive report of the Fire-Arms Expert qua the Klashinikov recovered from the petitioner Kamal Hussain which is licensed in the name of the petitioner Qamar Abbas. Besides, the occurrence has not been denied. There thus, exist reasonable grounds for believing that the petitioners have been guilty of offences covered by the prohibitory limb of section 497, Cr.P.C.
12. 10.It is true that there is a cross-case and a counter-version of the occurrence but it is by now firmly settled that in such an eventuality each case is to be decided on the basis of the material and evidence available on the record of that case and as observed in Nasir Muhammad Wassan and another v. The State (1992 SCM R 501) mere existence of cross F.I.Rs, or cross-cases against each other cannot be a ground for grant of bail or in Allah Wasaya and 2 others v. The State (1980 PCr.LJ 105) that an accused is not entitled to bail as a matter of right for reasons of a counter- version or a counter-case. Having examined the material available on the record of the present case tentatively we find that the petitioners prima facie appear to be at fault in view of the extent of the damage in general and this assertion reflected in the F.I.R. in particular that they had followed the complainant and his companions while they were leaving the Polling Station and their hostile posture had culminated in the incident. Needless to mention that it is rather difficult to overlook or repel the said assertion at this stage. The contention with regard to the aggression- related further enquiry is thus, misconceived. Same is the case with the dimension of further enquiry based on sudden flare up because it is more relevant to the question of sentence than guilt. Last but not the least on facts and circumstances of the case it cannot be said that the petitioners have not committed a non-bailable offence which is a condition precedent for grant of bail on the ground of further enquiry. As regards the contention that the complainant had suppressed the injuries sustained by the petitioner Qamar Abbas and his nephew it would suffice to say that the cross-F.I.R. is equally silent about the plight of Shabbir Ahmad Bilour etc. 11.The release of the accused in the cross-case cannot be blown out of proportion as they were allowed bail on merits and not as a matter of grace and it goes without saying that the defence of the petitioners is being pursued vigorously at every stage.
13. 12.For the foregoing reasons both the applications are dismissed. It may, however, be added that the observations made in this order are tentative in nature restricted to the diposal of the bail applications and shall not influence the mind of the trial Court in any manner.