1. ' This is a bail application in connection with Crime No,22 of 2002 registered at Police Station, Sachal Karachi for offences under sections 302, 324, Q&D Ordinance.
2. ' It is claimed that the complainant's brother had filed the civil suit in Sindh High Court which is pending. On 5-2-2002 Essa Jalbani's people attempted to kill the complainant's brother and in that respect F.I.R. No,5 of 2002 was registered at Malir Cantt. Police Station. On the day of the incident at about 9-00 in the evening the complainant and his brother were near a wall of SUPARCO when one car came in which Sufian Shaikhani, Essa Jalbani, Muneer Jalbani, Ameer Bux Khaskeli and Panah Jalbani stopped the car. Sufian was having a pistol in his hand and Essa Jalbani was carrying shot gun, Muneer Jalbani also had a pistol. All three told the complainant and his brother that today you shall die. Panah Jalbani and Ameer Bux Khaskeli caught hold the complainant's brother. Sufian fired straight at Nazeer Hussain. Other accused Essa and Muneer also fired with intention to kill.
3. According to the complainant, this incident was witnessed by Haji Raheem Khaskeli, Ghulam Rasool and Muhammad Panah Marfani. On hearing the shots other person of the village also came and the accused ran away. Nazeer Hussain died due to the encounter. Case was registered against Sufian, Essa Jalbani, Muneer Jalbani, Ameer Bux Khaskeli and Panah Jalbani.
4. ' Another F.I.R. No,32 of 2002 was registered at Police Station Sachal at about 22-45 hours between 12th and 13th February, 2002. It may be noted that F.I.R. No,22 of 2002 was registered at 10-25 hours on 13-3-2002, in this F.I.R. The complainant was Muhammad Younis Shaikhani. This F.I.R. Was registered under sections 342, 395 against Bashir Khaskeli, Nazeer Khaskeli, Haji Raheem Khaskeli, Mohsin Leghari, Fateh Muhammad Khaskeli, Atta Muhammad Shahani and Liaquat Marfani.
5. ' A third F.I.R. Has been registered which is F.I.R. No,47 of 2002 at Police Station Sachal. It was registered under sections 324, 337, Q&D, 148, 149, 34, P.P.C. On 5-3-2002 at 13-30 hours. It relates to the incident of 13-2-2002, this F.I.R. Has been registered by Abdullah Khan son of Sarwar Khan. In this case it is claimed that Bashir Khaskeli, Nazeer Hussain Khaskeli, Atta Muhammad Shahani, Qaim Ali, Haji Raheem Ali, Hussain Gopang, Liaquat Yar Khan and 3/4 persons who were not familiar to the complainant were outside and some of them had pistols and one of them had DBBL gun. They were beating up Sanwan son of Sadoro Khan. The complainant's brother also came and they both tried to rescue their brother. Bashir Khaskeli fired at the complainant's brother but it hit the brother of Bashir Khaskeli and Nazeer Hussain who fell down. Qaim Ali and Haji Raheem also fired. Allah Jurio was also injured. It is further claimed in the F.I.R. That Bashir Khaskeli had lodged false report against Ameer Bux and other people. Apparently the fact according to the complainant is that Nazeer Khaskeli died due to the fire of Bashir Khaskeli.
6. ' Learned counsel for the accused has also taken a plea that besides there being counter-benefit of bail on medical grounds also. He has also placed on record the injuries suffered by Allah Jurio and Muhammad Sufian. These copies are taken out from the Medico-legal Centre of Jinnah Post Graduate and Medical Centre, Karachi and the Medico-legal Centre Abbasi Shaheed Hospital, Nazimabad. He has also placed on record a medical report of the applicant which was given to the 1st Additional Sessions Judge. Malir. Counsel has also placed on record copies of Medical Superintendent, National Institute of Cardiovascular Disease and many other documents to justify the fact that the applicant is medical patient, needs good medical treatment and therefore, he is to be released on bail. The emphasis has been also on the fact that apparently the gentleman is suffering from heart problems. Learned counsel has relied upon the following authorities on medical version and counter-version.
7. ' Medical version
(1) Sirajuddin v. Riasuddin and another 1980 PCr.LJ 1066. In this case cancellation of hail was declined as the petitioner was heart patient and being treated in Cardio Vascular Institute.
(2) Abdul Aziz v. (1) Bashir Ahmad, (2) The State PLD 1966 SC 658. In This case it was observed that where there is reasonable ground for believing that an accused person is guilty of an offence punishable with death or transportation for life, bail may yet be granted if he be sick or infirm.
(3) Rai Attaullah Khan v. Raja Anar Khan 1979 SCM R 471. In this case accused being infirm, suffering from high blood pressure, angim and gastritis and he was granted bail.
(4) Muhammad Ashraf Khan v. The State 1990 PCr.LJ 169. In this case accused was suffering from acute and serious ailments and was admitted to bail.
(5) Abdul Hameed v. The State 1992 M LD 414. In this case accused was found to be a sick person and he was granted bail.
(6) Mian Muhammad Aslam Goraya and others v. The State 1977 PCr.LJ 394. In this case accused suffering from damage to anterolateral surface of heart and malady of nature which might strike without any warning. No arrangement for immediate and effective treatment available in jail, he was granted bail.
(7) Malik Muhammad Yousafullah Khan v. The State PLD 1995 SC 58. In this case it was observed that the ailment with which the accused is suffering is such that it cannot be properly treat& while in custody in jail. The accused was granted bail.
(8) Muhammad Sachal v. The State 1998 PCr.LJ 1597. In this case Medical Certificate duly issued by Cardiologist after examining accused, accused was found to be heart patient and his detention in jail would be detrimental to his life. Bail was granted on the basis of his ailment.
(9) Abbas v. The State 2000 SCM R 212. In this case accused was suffering from "Hapatitis-C" (viral infection) as per report of Medical Board. Accused was granted bail.
(10) Zakhim Khan Masood v. Special Judge, Central, Rawalpindi and 3 others 1998 SCM R 1065. In this case it was observed that ailment of accused according to medical report was likely to have hazardous effects on his life because stress and strain could aggravate his disease. Bail was allowed to accused.
8. ' Counter version
(1) Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCM R 391.
9. ' In this case accused was enlarged on bail on the grounds of there being prima facie probability of counter-version.
(2) Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCM R 1845. In this case it was observed that case of two counter-versions arising from the same incident, one given by complainant in F.I.R. And the other given by the opposite-party. Bail was granted to the accused.
(3) Muhammad Aslam and another v. The State 1997 SCM R 251. In this case it was observed that case was one of cross-version and the accused had also suffered injuries at the hands of the complainant party. Accused were allowed bail accordingly.
(4) Zafar Iqbal v. The State 1999 PCr.LJ 1840. In this case it was observed that case was one of counter-version one version was given by complainant in F.I.R. And other was given by opposite- party. Bail was granted to accused.
10. ' The counsel appearing on behalf of the complainant has urged that specific role has'been attributed to the applicant in the F.I.R. And, therefore, it being a murder case the benefit of bail cannot be given.
11. ' The counsel for the State states that this bail application should be dismissed.
12. ' I have heard the three parties at length. Enough material has been placed on record to show that indeed the applicant has got serious medical problems. The documents that have been brought to my attention have been 'signed by top Surgeons and doctors and have been issued by N.I.C.V.D.
13. Agha Khan Hospital and other medical Institution. Credence can be given to these documents whilst deciding a case for the grant of bail. In the above cited cases Courts have been inclined to grant bail where the applicant has been able to satisfy the Court that he is sick or A infirm and suffers from a problem that would be aggravated if he remains incarcerated. Honourable Supreme Court has granted bail where the accused has been suffering from high blood pressure and cardiac problems. In this case also the applicant seems to be suffering from cardiac problems.
14. Besides the ground of medical the applicant has also claimed that he is entitled to the concession of bail on the ground of counter-version. On this ground also there are several case-laws and some of them have been mentioned above. The concept behind granting the concession of bail in spite of the prohibition under section 497, Cr.P.C. Is that if the applicant is able to show to the Court that more than one version of the incident is available than a doubt is created as to whether prima facie a case exists against the accused or not. In this case also there are three F.I.Rs, and the same incident has been shown in three different angles. It would, therefore, necessitate recording of evidence before it can be decided whether indeed the accused is guilty or not.
15. ' I would grant bail to the applicant in the sum of Rs,3,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.