1. Applicant seeks bail in Crime No,46 of 2002 of Police Station Meero Khan registered under sections 392, 337-A (ii), 337-F(i), 324, 148, 149, P.P.
2. The facts of the prosecution case are that the complainant party have dispute on landed property with Abdul Rasool Magsi and others. On 25-5-204 complainant alongwith his brother Muhammad Anwar aged about 24/25 years father Ghulam Mustafa. uncle Abdul Sattlar and cousin Abdul Rahim were working in the lands situated in Deh Kandi. It was 7-00 p.m. accused Abdul Rasool 2. Ali Sher 3. Ashique Ali all sons of Abdul Rahim 4. Wali Muhammad 5. Ali Khan 6. Pathan 7. Gulsher 8.
3. Gulzar 9. Sono 10. Haji Acram (applicant) and three unknown persona if seen again could be identified. Out Of them Abdul Rasool had gun, Ali Sher aimed with rifle, Pathan with gun, Ashique Ali, Ali Khan, Gulsher, Gulzar and three unknown persons were armed with hatchets while rest accused were armed with Lathies, n their arrival accused raised 'Lalakaras' to leave the land as they will plough the land whereupon the complainant party asked them that it is their personal land and accused have no right to cultivate the same. On saying so accused All Sher with intention to commit murder directly fired from his rifle at Muhammad Anwar which hit him on his forehead under right side armpit and mouth. Co-accused X)dul Rasool and Pathan with intention to commit murder fired directly from their guns at Ghualm Mustafa which hit him on his right hand who also fell down and the accused who were armed with hatchets and Lathies caused blows to Abdul Rahim on his head as well as to the complainant. The. complainant party raised cries of murder- murder and on cries and fire-arm reports many villagers arrived at the place of incident. On seeing them coming all the accused alongwith their respective weapons decamped towards village. The complainant and the witnesses found Muhammad Anwar bleeding and had died. Ghulam Mustafa and Abdul Rahim were lying on the Vardat having numerous injuries. The complainant party due to non-availability of conveyance and due to odd hours remained there and after some time the complainant left the deceased and the injured at the Vardat and left for village on foot for advice. It is further stated in the F.I.R. that the accused named above being armed with weapons hatchets and Lathies in their pre-concert of accused All Sher and fired direct rifle shot At deceased Muhammad Anwar and killed him and other co-accused with intention to commit murder directly fired from their guns at Ghulam Mustafa and the rest accused armed with hatchets and lathies have caused injuries to the complainant as well as P.W. Abdul Rahim. The applicant/accused was arrested and after due investigation of the case the charge-sheet has been filed in the Court having jurisdiction. The bail plea on behalf of the applicant/accused was moved in the trial Court and the same was dismissed on 24-10-2002 by the learned 2nd Additional Sessions Judge, Larkana. The applicant has preferred this application before this Court on similar grounds for seeking bail.
4. It is contended by the learned counsel for the applicant that there are counter-versions of the same incident reported by the complainant of this case (Akbar Ali) in Crime No,46 of 2002 at Police Station Meero Khan and the other was lodged by Ali Sher in Crime No,47 of 2002 and All Sher is one of the co-accused in this case. It is further urged by the learned counsel that co-accused Pathan, Gulsher, Gulzar and Sono Khari have been released on bail in Criminal Bail Application No, S-530 of 2002 decided on 2-1-2002 and the case of applicant/accused is identical to the case of above mentioned accused. It is further urged by the learned counsel that the rule of consistency may be taken into consideration as the other co-accused have been granted bail in identical situation and the accused in the given circumstances could not be discriminated against and treated inter se fairly and equally. It is further argued that it is yet to be seen and determined at the time of trial that who is aggressor and who is aggressed upon and there is golden principle of law in case of two counter-versions which can only be determined at the time of trial. It is also stated by the learned counsel that as per F.I.R. in this case one person namely Muhammad Anwar has lost his life and three prosecution witnesses have received injuries whereas in the counter-case five persons have received injuries namely Ali Sher, Jan Muhammad, Karim Bux, Jani Baig and Gulzar. If is further urged by the learned counsel that as per F.I.R. allegations against the applicant/ accused Haji Akram is that at the time of alleged incident he was armed with Lathi and no specific role is attributed to him and the allegations of general nature are mentioned in the F.I.R. in support of his arguments learned counsel has relied upon the case. of Abdul Salam v. The State (1980 SCM R 142).
5. Fazil Khaliq alias Hafiz v. The State through Advocate-General (1996 SCM R 364), Shoib Mehmood Butt v. Iftakharul 1-laq and 3 others (1996 SCM R 1845) and Muhammad Murad v. The State (2002 PCr.LJ 1051).
6. Mr. Ali Azher Tunio learned Asstt. A.-G. has not controverted the grounds urged by the learned counsel as well as the case-law cited at bar. He further submits that in view of the order in Criminal Bail Application No,S-530 of 2002,. dated 2-10-2002 whereas the co-accused Pathan, Gulsher, Gulzar and Sono Khan have been released on bail and the case of the applicant/accused is based on similar circumstances. It is further pointed out by learned Asstt. A.-G. that co-accused Pathan was armed with gun who tired at injured Ghulam Mustafa who has been released on bail by this Court and the case of the present applicant is on. better footing.
7. I have heard at length to Mr. Asif Ali Abdul Razak Soomro, Advocate for the applicant and Mr. Ali Azher Tunlo learned Asstt. A.-G. and perused the material placed on the record and the case-law cited by the learned counsel for the applicant/accused. In view of the pronouncement made in the case of Abdul Salam v. The State, the operative part of the order is reproduced hereinbelow:-- "We also are of the view that as there was no distinction between the case of the petitioner and Sher co-accused(whose case was. rather worst) the privilege of bail should not have been refused to the petitioner. It appears that in the matter of bail- the Courts below did not act on correct principles of law applicable in cases of this type and failed to maintain equality of treatment between persons placed in Similar situation and similar circumstances."
8. In similar circumstances, Honourable Supreme Court of Pakistan in the case of Fazil Khalique alias Hafiz v. The State has observed as under:-- "We have heard the learned counsel for the parties. The necessary record was also read by us with care. We are inclined to grant bail to the petitioner on the plea that it was a case of further inquiry inasmuch as all the accused had been given this relief almost in identical situation. In the given circumstances, the accused could not be discriminated and had to be treated inter se fairly and equally. It has been pointed out by the learned counsel that the witnesses could not see the occurrence in such a big gathering of the people of the area who were armed and took part in the incident. Without expressing any opinion on the merits of the case, we grant bail to the petitioner in the sum of Rs,100,000 (one lac) with two sureties each in the like amount to the satisfaction of trial Court."
9. While deciding Criminal Petitions Nos.183 of 1995 and 39 of 1996, Hon'ble Supreme Court of Pakistan in case of Shoib Mehmood Butt v. Iftakharul Haq and 3 others that in case of two counter-versions arising from the same incident one given by the complainant in the F.I.R. and the other given by the opposite-party such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(ii), Cr.P.C. As the trial Court is supposed to record the evidence and also apprised the same in order to come to a final conclusion in this regard. In cases of counter-version normally plea of private defence is taken given rise to question as to which party is aggressor and which party is aggressed. There is another reported authority in case of Muhammad Murad v. The State (2002 PCr.0 1051), the plea taken by the Division Bench of this Court is reproduced herein-below:--- "It is an admitted position that there are cross-cases between both sides and from each side one person has lost their lives. It is also on admitted position that applicant sides also sustained injuries in the incident. There are two versions of the prosecution case itself goes to create doubt and makes the case against the applicant to be one of further enquiry. It is yet to be determined who is aggressor and who first caused injuries to other side. Keeping in mind the above facts and cross- cases between the parties, we feel that the case against the applicant is also of further enquiry."
10. The co-accused Pathan, Gulsher, Gulzar and Sono Khan have been released on bail by this Court on the ground of two versions and it was also considered that both parties have concealed the fact that the other party also received injuries. The case of the applicant/accused is identical to the case of co-accused who have been released on bail by an order, dated 2-10-2002 in Criminal Bail Application No,S.530 of 2002. In view of the legal position based on the ground of counter version and the case-law cited by the learned counsel and factual as well as legal position has been conceded rightly by the learned Asstt. A.-G. In view of this matter this Court has no option but to grant bail to the applicant/accused in the given circumstances.
11. Resultantly bail is granted to applicant Haji Akram subject to furnishing surety in the sum of Rs,200,000 and PR bond in the like amount to the satisfaction of the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.