Cr. Bail Application No.S-205 of 2009.
For hearing.
21.4.2009. Mr. Noor Hassan Malik advocate for the applicants.
Mr. Miss. Rizwana Jabeen Siddiqui advocate for complainant.
Mr. Agha Athar Hussain Pathan AAG for the State.
Through this bail application, applicants have sought bail in Crime No.24/2007 P.S Mehrabpur U/s 302, 324, 447, 337,A(ii), F-1, 337-F(iii), 147, 148, 149 PPC.
Learned counsel for the applicants Mr. Noor Hassan Malik has submitted that there was dispute over a piece of agricultural land and according to story mentioned in the FIR the complainant party alongwith the police officials went on the site to take the possession, there exchange of fire took place in which one person namely Muhammad Ashraf died allegedly as a result of injuries of fire arm caused by applicant No.2 and one person namely Muhammad Ramzan was injured allegedly by a fire arm caused by applicant No.1. The learned counsel for the applicant submitted that it is an admitted position that fires were exchanged among the parties and as a result from the side of complainant one person died and other became injured. He further stated that both applicants have also sustained injuries in this incident and as such in view of principle laid down by the superior courts in counter cases, according to learned counsel for the applicants his clients are also entitled for grant of concession of bail. He has relied upon the following case law:-
1) 1972 SCMR 682.
2) 2005 P.Cr.L.J0 505,
3) 2004 MLD 1739.
4) 1976 SCMR 391.
5) 1996 SCMR 1845.
6) 2009 P.Cr.L.J Pesh. 193.
7) 2009 SCMR 32.
On the other hand learned counsel for the complainant Miss. Rizwana Jabeen Siddiqui stated that the allegations against the applicants are specific and there are reasonable grounds for believing that they have committed the offence alleged. She has stated that specific role has been assigned to both the applicants in FIR and it has been said that the deceased died due to fire arm injury caused by the applicant No.2, and applicant No.1 caused injuries to injured Muhammad Ramzan. According to learned counsel for the complainant the injuries sustained by the applicants are not of serious nature and can be self suffered injuries. She has relied upon 1983 SCMR 278, 1992 SCMR 501 and 2005 SCMR 1402.
Mr. Agha Athar Hussain learned AAG has adopted the arguments of Miss Rizwana Jabeen Siddiqui and further states that there is specific role attributed against the applicants and that one person has died in the incident whereas other was injured. He states that injuries sustained by the applicants are not of serious nature and the same can be self inflicted injuries.
I have heard all the learned counsel for the parties and have examined the record with their able assistance.
In three judgments of Hon’ble Supreme Court referred by learned counsel for the applicant i.e. 1972 SCMR 682, 1976 SCMR 391 and 1996 SCMR 1845, interference in discretion exercised by High Court for grant of bail was declined. However in 2005 P.Cr.L.J 505, 2004 M.L.D 1739 and 2009 P.Cr.L.J Peshawar 193, the bail was granted in cases where there was counter versions and the courts found that in case of counter versions who is aggressor is a question of fact to be determined by trial court after recording the evidence in the matter. Although it has been observed in the cases cited by the learned counsel for the applicants that in cases of counter versions normally bail is to be granted leaving it to the trial court to decide that who is aggressor. However honourable Supreme Court has held in the cases cited by learned counsel for the complainant that it is not a hard and fast rule, and it cannot be held that whenever there is counter versions bail has to be granted. The bail was granted by Hon’ble Supreme Court in 2009 SCMR 32, but in such case it appears that rule of consistency was applied as all accused from both sides were already on bail. Therefore in my humble view case law cited by parties do not attract the proposition that in each and every case when there is counter version bail is to be granted without seeing the role attributed to a person who participated in the commission of offence. In the present case one person has died from the side of complainant and on the other hand the injuries sustained by applicants are not of serious nature and as has been pointed out by learned AAG on the basis of record available with him and also by learned trial court in its order dated 19.2.2009 (which has been produced by the learned counsel for the applicants), Sudhir and Abdul Majeed (present applicants) have not sustained serious injuries and more over these injuries were caused by hard and blunt substance, therefore it cannot be said that there was intention on part of the complainant party to commit murder of applicants.
In view of above facts and circumstances in my humble view the applicants are not entitled to grant of bail at this stage and as such this bail application is dismissed. Needless to say that the observations made in this order are tentative in nature and the trial court should not be influenced with these observations as the same are only for the purpose of disposal of this application. It will also be open to the applicants to repeat fresh bail application before the trial court after recording of some evidence by the trial court. Cr.B.A No.205/2009 stands disposed of.
JUDGE.