' This petition was entrusted to this Bench by the Hon'ble Chief Justice on 23-2-1999 upon a reference made for its transfer by my learned brother Asif Saeed Khan Khosa, J., who had disposed of the bail petition of the co-accused of the petitioners namely Ghulam Qadir vide his detailed order, dated 18-6-1998.
2. The brief facts are that a case under sections 302/324/148/149, P.P.C., was registered against the petitioners and others vide F.I.R. No,21 of 1997, dated 9-2-1997 at Police Station, Kotli Loharan District Sialkot for the awful murder of Muhammad Ilyas, Muhammad Akram, Mst. Ghulam Fatima and Mst.
Naureen whereas causing injuries to the injured P.Ws. Mst. Yasmin and Mst. Khurshid Bibi by the free and indiscriminate use of firearms. The complainant in this case was Sarfraz Ahmad.
3. For the same occurrence a cross version was also registered vide F.I.R. No,22 of 1997 filed by Fazal Hussain at the same police station wherein it was reported that the present petitioners and others had committed the murder of Ghulam Hussain and had caused injuries to Mst. Surraya and Mst.
Arshad Bibi P.Ws.
4. It was the day of Eid-ul-Fitr, when the unfortunate occurrence had taken place resulting into killing of 5 afore named persons leaving 4 injured P.Ws. To survive. Each party took up the stand that other party was the aggressor.
5. The learned counsel for the petitioners has submitted that in fact the complainant side was the aggressor as they had killed the father of the petitioners namely Ghulam Hussain while attacking at their house after well thought out plan of killing; that the death of Ghulam Hussain and injuries to P.Ws. Were suppressed which showed that hands of complainant side were soiled; that the accused in the cross version i,e, from the complainant side are already on bail, therefore, the rule of parity would demand that the present petitioners be also admitted to bails.
6. Lastly it was contended that one of the co-accused of the petitioners namely Ghulam Qadir has already been admitted to bail and that the case of the present petitioners is not distinguishable from him and as such rule of consistency would require that petitioners be admitted to bails.
7. Finally it was contended that since there were two versions about the same occurrence, involving cross cases, therefore, it would become a question of further inquiry.
8. The bail petition was opposed on the ground that petitioners and their co-accused acted in heartless manner to commit the murder of 4 persons and causing injuries to 2 P.Ws. By using firearms and resorting to indiscriminate heavy firing. They allegedly acted as desperado and in cruel manner and therefore, would not be entitled to bail as the question of aggression is yet to be gone into at the trial for which onus is heavily on the offenders who claim the exception. However, at this stage, it cannot be said that actually the complainant side was aggressor because if they had come to commit the aggression then they would have not left 4 dead bodies at the spot and 2 injured P.Ws. To survive them. The quantum of loss of life and injury on the side of complainant would conversely show that in fact they were the victim of aggression, and not the petitioners side.
9. I have considered the foregoing facts and find that there was loss of life from both sides. All the participants of the gruesome killing acted like desperados to make the indiscriminate firing in a broad day light thereby showing that they had scant respect for human life and safety.
10. The question of cross version came under discussion in Nasir Muhammad Wassan and another v. The State reported as 1992 SCM R 501 wherein it was observed that mere existence of cross F.I.Rs, or cross cases against each other cannot be a ground of bail nor opinion on merits in favour of the petitioners can be given at a bail stage. Similarly it was observed in Muhammad Akram v. The State reported as PLD 1993 Peshawar 175 that most of such cases fall, ' under the category of 'free fight' in which both the parties enter into and engage in, of their free volition, thus, excluding the possibility of pleading self defence later. It was however, observed that in the context of the present law and order situation and emergence of Kalashnikov culture, the plea of bail raised in cross-cases is not to be taken lightly.
11. In the light of above authorities and after examining the facts of the present case and also not being oblivious of the present day crime scenario it would be a premium to the criminals to release them on bail at this stage particularly when there was unrestrained use of brute power and naked ego at a public place in the broad day light of killing and injuring the human beings like sitting ducks, with indiscriminate and unwonted use of firearms. All the petitioners are named in the F.I.R.
And a specific role to each of them has been attributed in killing the aforesaid persons and causing injuries- to the P.Ws. They would have, therefore, no case for bail at this stage although they are already in continuous detention for more than two years as they prima facie appear to be desperate and heartless criminals. The bail petition is dismissed.
12. Needless to say that the above observations are purely for the limited purpose of disposal of this bail petition having no bearing on the merits of this case which has to be decided on the basis of evidence brought on record.