1. ' This is a bail before arrest application filed by applicant Maur involved in Crime No,203 of 2002 of Police Station K.N. Shah District Dadu.
2. ' The facts giving rise to the present application were that the complainant Ali Sher alongwith Muharram are cultivating the land of Haji Abdul Rasool situated in Deh Khat Lashkar. On 21-12-2002 they were returning from their lands but on the way Niaz Sanyo one of the co-accused and deceased of counter-case after abusing them fired at them but the fires were missed, therefore, a case was registered. On 22-12-2002, the complainant alongwith deceased Muharram P.W. Qadir Bux, Abdul Sattar were working at their lands when at about 11-00 a.m.., the applicant armed with gun and five other accused persons armed with guns and hatchets came their including Niaz Sanyo. The abused the complainant party and told them to leave the lands. The deceased co- accused Niaz fired from his gun at deceased Muharram which hit him. Muharram also fired from his gun in his self-defence. The co-accused Manthar fired from his gun at his brother Muharram which also hit him and then co-accused Raza Ali caused hatchet injury to the deceased.
3. Thereafter, the other accused after firing in the air ran away. The incident was reported to Police Station at 1-15 p.m.
4. ' With regard to the same incident counter version was also filed by Rasool Bux from the side of accused party alleging that they were working in their lands where deceased Niaz, deceased Muhammad Ismail, Muhammad Sanyo, injured Manthar All and Mour the present applicant were working in the lands when at about 11-00 a.m. They saw Abdul Sattar, Muharram armed with guns, Muhammad Uris, Ashfaq came there and abused them. Deceased Niaz started running on which accused persons chased him and then Abdul Sattar fired from his gun at Niaz who received injuries and fell down on the ground and other accused also fired which hit Muhammad Ismail and Manthar who also fell down. Thereafter, the accused after firing in the air ran away. In this incident Niaz who has been shown as accused in the incident of the complainant and Muhammad Ismail had lost their lives. Whereas Manthar had received injuries. The incident was reported at 12-30 p.m.
5. Before 45 minutes of this report of present case. From the above facts it is clear that there are counter-version with regard to the same incident.
6. ' In this background the applicant approached this Court for grant of protective bail which was granted to him. Then he approached Sessions Court for grant of pre-arrest bail but the same was dismissed on 14-1-2003. Hence he has filed the present bail application. In the meantime the case was challaned in which the present applicant has been shown as on protective bail whereas accused Raza Ali who was assigned the part of causing hatchet injury to the deceased was let off by the police.
7. ' The learned Advocate for applicant has stated that there is counter version with regard to the present incident, therefore, it is yet to be determined as to which party is aggressor. He has relied upon the case of Shoib Mehmood Butt v. Iftikhar-ul-Haq reported in (1996 SCMR 1854). He has further stated that no part has been assigned to the present applicant for causing any injury to any person; that he was present at the place of Wardat as is clear from the counter- version because he was working there and one of the eye-witness in the case, therefore, he has been involved in this case with ulterior motive and mala fide intention. He has relied upon 1996 SCMR 165.
8. ' On the other hand the learned Asst. A.-G. Has stated that the name of the applicant is mentioned in the F.I.R.; his presence has been shown at the place of Vardat, therefore, he is involved in the case. He has further stated that mere ground of counter-version is not sufficient for the concession of pre-arrest bail. He has relied upon 2003 PCr.LJ 135 Allah Dino v. The State.
9. ' I have given due consideration to the arguments and find that on merits of the case, only presence of the applicant has been shown at the place of Vardat. He has not been assigned any part of causing injuries to any witnesses nor specifically it has oeen mentioned that he had fired from his gun in the air. Even the part of 'Lalkara' or proverbial instigation has not been assigned to the present applicant. There is recorded enmity between the parties. Therefore, the case is to be viewed in the light of said circumstances. Further more there is counter-version with regard to the incident of this case in which one person lost life from the side of complainant party and two persons lost lives from the side of accused party and one person received injuries. The dead bodies of both the sides are allegedly lying in this land adjacent to the lands of each party, giving impression that each party is aggressor as such each party can take this plea of right of private defence. In such situation it is yet to be determined as to which party is aggressor. The Hon'ble Supreme Court of Pakistan examined the case of counter versions arising from the same incident and granted bail by observing in the case of Shoaib Mehmood Butt (supra) at page 1854 as under:-- ' In case of counter-versions 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 cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry for the reason 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 come to a final conclusion in this regard. In cases of counter-versions, normally plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmad (1976 SCM R 391) in cross cases the High Court granted bail to the accused on the ground that there was probability of counter-version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted. In the same context, reference can be made to the case of Mst. Shafion v. Hashim Ali and others (1972 SCM R 682).
10. ' The rule laid down by the Hon'ble Supreme Court of Pakistan is fully applicable in the present circumstances of the case. In view of the said ruling the case of the applicant requires further enquiry as contemplated under section 497(2), Cr.P.C., therefore, the applicant is entitled for the concession of bail. The authority quoted by the learned Asstt. A.-G. Is distinguishable from the facts of the present case as in that authority specific part was assigned to the accused whereas no part of causing any injury has been assigned to the present applicant as discussed above.
11. ' In view of above position, bail before arrest is granted to the applicant in the sum of Rs,200,000 with P.R. Bond in the like amount to the satisfaction of the trial Court. The application is allowed.