1. ' Both the Bail Applications bearing No, 495 of 2001 and No,742 of 2001 are emanating from the Crime No,24 of 2001 and are being decided by this single order.
2. ' Applicant Akhtar Ali Khan is seeking pre-arrest bail in Criminal Bail Application No,495 of 2001 whereas applicant Syed Javed Ali is seeking bail after arrest in the same crime. Both the applicants moved bail application before the trial Court but without success, hence these bail applications.
3. ' Brief facts of the case are that Jalal (complainant) son of Muhammad lodged F.1.R. On 21-2-2001 at 16-45 hours stating thereing that he is residing at Street No,8, Ahmed Shah Bukhari Road, Near Kalri Ground, Foot Ball Club, Phool Patti Line, Karachi and works as Munshi with Naseem, Advocate.
4. On 21-2-2001 when he went to the Court of Sessions Judge South Karachi for inquiring about the case, his son Abdul Hameed and his friend Ghulam Hussain Chandio were also with him. His son Abdul Hameed is friend of one Ibrahim who has been abducted by Shoaib Khan and others which case is registered at Gizri Police Station. According to him, he, his son Abdul Hameed and Ghulam Hussain Chandio while climbing down the stairs of the Court and reached at the ground floor, it was about 2-00 p.m. Where they saw Akhtar Ali Khan, Shoaib Khan, Raees Khan, Hamid Khan, Mansoob Qureshi Advocate, Inspector Ali Raza (CIA) Naeem Qureshi Advocate, Karim KK, Zahid Khan Javed Bashir alias Javed Mahajir, Tariq Malik and 10/15 other persons whose faces were familiar all were armed with fir-arms came from the side of Bunder Road. Immediately on seeing his son Abdul Hameed and Ghulam Hussain Chandio, they said that both are well-wishers of Ibrahim and they will not be spared and started firing from their fire-arms whereupon his son Abdul Hameed received bullet shot on his head and face and Ghulam Hussain Chandio received on his stomach who fell down being injured. As a result of firing by the accused, three passers by were, whose names have now been learnt in Civil Hospital as (1) Muhammad Saleem, (2) Ayaz Bakhsh and (3) Kamran were also injured. The son of complainant Abdul Hameed and Ghulam Hussain Chandio were removed in operation theatre. Besides, the incident has been witnessed by Javed, Abdul Ghani, Ibrahim, Hand, Arshad Naqvi, Saleem and Atif. According to the complainant accused Akhtar Ali Khan, Shoaib Khan, Raees Khan, Hamid Khan, Mansoob Qureshi, Advocate, Inspector Ali Raza (CIA), Naeem Qureshi Advocate, Karim KK, Zahid Khan, Javed Bashir alias Javed, Muhajir, Tariq Malik and other 10/15 accused of familiar faces have caused injuries to his son Abdul Hameed and Ghulam Hussain Chandio by fire shots with their common intention to kill them and also injured three passers by.
5. ' Mr. Shoukat Zubedi, Advocate for the applicants, has argued that the incident in Crime No, 24 of 2001 has taken place on 21-2-2001 at 2.00 p.m. Whereas the F.I.R. Has been lodged on 21-2-2001 at 4.45 p.m. And on the same date the counter-F.I.R. Has been lodged by the present applicant Akhtar Ali Khan being Crime No,25 of 2001 which was taken down under sections 147, 148, 149 and 365, P.P.C. And this F.I.R. Has been registered at 1715 hours. According to him there are counter-cases and who is the aggressor, who opened the attack is a question which can be determined at the time of trial and the case of the present applicants is falling within the purview of section 497(2), Cr.P.C. Learned counsel has further pointed out that in Crime No,25 of 2001 one accused Syed Arshad Israr Shah has been granted bail by this Court on 26-4-2001 wherein .The learned counsel Mr. Shandat Awan for the applicant namely Syed Arshad Israr Shah in Crime No,25 of 2001 at present representing complainant in Crime No,24 of 2001, has taken a plea that admittedly there are counter-cases and who are aggressors is a question which can be considered by the trial Court at the time of trial. Learned counsel has further argued that even defence counsel ' Mr. Mansoob Qureshi has not been spared by the complainant party. Although accused namely and respectively Mansoob Qureshi, Naeem Qureshi and one Ali Raza Inspector have been dropped by the police and there is no explanation with regard to their let off by police and in that event the prosecution is not certain with regard to the majority of accused. Learned counsel has also argued that Shoaib who is son of the present applicant namely Akhtar Ali Khan was also abducted by the complainant party and was also released on receiving ransom, yet the police have not challaned the accused in Crime No,25 of 2001 before the competent Court of law. In support of his contentions he has placed reliance on 1996 SCMR 1845 relevant page 1854 (Shoaib Mehmood Butt v. Iftikharul- Haq and 3 others) wherein the Hon'ble Supreme Court has held that in case of counter-version arising from the same incident, one given by complainant in F.I.R. And the other given by the opposite party, case law is almost settled that such case are covered for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. In such cases normally bail is granted on the ground of further inquiry for the reasons that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to a final conclusion in this regard. In cases of counter-version, normally plea of private defence is taken, giving rise to question that which party is aggressor and which party is aggressed. He has also placed reliance on 1972 SCMR 682 (Mst. Shafiqan v. Hashim Ali and another), wherein the Hon'ble Supreme Court has granted bail in murder case on the ground of counter-version. Question whether accused or deceased was aggressor yet to be determined bail, held, in circumstances, properly granted by the High Court. The contention of the learned counsel for the applicants is that this is not a murder case on the contrary it is injury case and there are two conflicting versions and moreover in counter-case Crime No,25 of 2001 accused Syed Arshad Israr Shah has been granted bail by this Court on the same ground that there are counter-cases and the case is falling within the purview of section 497(2), Cr.P.C.
6. ' On the other hand Mr. Shahadat Awan, Advocate for the complainant, has opposed to the grant of bail and submitted that the challan in Crime No,24 of 2001 has been submitted before the learned Court of III-Additional Sessions Judge South Karachi and so also challan has been submitted in Crime No, 25 of 2001 before the learned I-Additional Sessions Judge Karachi South. He has also placed reliance on case of Shahzaman and 2 others v. The State and another reported in PLD 1994 SC 65.
7. ' Mr. Jawed Chhattari, Advocate has also argued on behalf of injured Abdul Hameed and has submitted that the F.I.R. No,25 of 2001 has been deliberately registered by the accused party in order to put up their defence wall although no such occurrence has taken place. According to him serious offence has taken place in Court premises and in that event no Court will be safe in future.
8. ' Injured Ghulam Hussain Chandio in person argued that he had gone to the Court just to take care of the case of his friend and was injured and he has also opposed to the grand of bail.
9. ' Mr. Arshad Lodhi, Assistant Advocate-General for the State, has submitted that this is unfortunate incident which has taken place in Court and has opposed to the grant of bail.
10. ' I have heard the learned counsel for the parties and gave them patient hearing. I have also gone through the material available on record. Admitted there are counter-cases viz. Crime Nos.24 of 2001 and 25 of 2001 and have been registered by both the parties. Admittedly in Crime No,24 of 2001 Abdul Hameed, Ghulam Hussain and three passers by namely (1) Muhammad Saleem (2) Ayaz Bakhsh and (3) Kamran are injured. It has not been pointed out by the learned counsel for the complainant, for injured and learned A.A.-G. For the State that whether statements of passers by namely and respectively (1) Muhammad Saleem, (2) Ayaz Bakhsh and (3) Kamran have been recorded by Police. The aforenamed learned counsel have not touched this aspect of the case at all. As far as the counter-case of Crime No,25 of 2001 is concerned admittedly the applicant Akhtar Ali Khan has lodged F.I.R. On the same day against the complainant party and according to him it is a case of not only abduction but ransom and dishonesty has been done by the police as the challan has not been submitted before the competent Court of law looking at the gravity of the serious offence. Admittedly one of the accused in Crime 25 of 2001 has been granted bail on the same footing. I have also taken into consideration another important aspect of the case that the F.I.R. Has been registered in Crime No,24 of 2001 on 21-2-2001 at 4-45 p.m. Whereas F.I.R. Of present applicant Akhtar Ali who is the complainant in Crime No,25 of 2001 has been registered on 21-2- 2001 at 5-45 p.m. Two things are overlapping from the aforementioned admitted facts that (1) when F.I.R. Was being registered by Akhtar Ali all Police Station on 21-2-2001 at 5-45 p.m. The offence vide Crime No, 24 of 2001 was not registered with the same Police Station at 4-45 p.m., as being claimed by the complainant party or (2) something is being suppressed by the complainant party. In both the cases it goes unexplained as to why Akhtar Ali complainant in Crime No,25 of 2001 was not arrested by the police at 5-45 p.m. When F.I.R. Crime No,24 of 2001 was registered on 21-2- 2001 at 4-45 p.m. This gives inference that the F.I.R. No,24 of 2001 was not in existence when F.I.R.
11. No,25 of 2001 was being registered. Admittedly there are counter-cases and the question whether Shoaib son of the present applicant Akhtar Ail was abducted or not or he was released by accepting the ransom by the complainant party which is being controverted by the complainant party during the course of arguments. Be that as it may, there is a counter-version coming from the side of the present applicant and co-accused and further reliance can be placed on case of Nadir and 2 others v. The State. Reported in 1985 PCr.LJ 247 wherein this Court has granted bail to accused on the ground that although there was a verbal counter-version on the part of the accused party, yet the accused was granted bail in a murder case. In the instant case there is a counter-case in the shape of Crime No,25 of 2001 and the question before the Court is as who is the aggressor and who has been subjected to naked aggression, who opened the attack first is the question which can be determined at the time of trial. In view of case law submitted by Mr. Shoukat Zubedi, learned counsel for the applicants in both the applications I am being fortified and taking into consideration another D.B. Decision of this Court reported in PLD 1985 Karachi 27 relevant page 30 The State v. Aziz alias Abdul Aziz) wherein the categories of the further inquiry have been defined by the D.B. Of this Court in details. The case law cited by Mr. Shahadat Awan, learned counsel for the complainant is distinguishable from the facts of the present case. Injured Ghulam Hussain has not implicated any of the accused in his statement under section 161, Cr.P.C. Further his claim that he had gone to Sessions Court to take care of case of his friend is being belied by the fact that in F.I.R. Complainant has specifically stated that he Abdul Hameed and Ghulam Hussain had gone to Sessions Court.
12. ' Upshot of the above discussion is that the applicants have made out prima facie good case for grant of bail. Accordingly, interim bail of applicant Akhtar Ali Khan an granted by this Court y earlier order, dated 27-4-2001 is confirmed on the same terms and conditions while applicant Syed Javed Ali who is in custody is granted bail in the sum of Rs,100,000 (Rupees one lac only) with P.R. Bond in the like amount to the satisfaction of the trial Court.
13. ' Criminal Bail Applications Nos.495 of 2001 and 742 of 2001 stand disposed of alongwith listed application.