ORDER SHEET
Crl. Bail Appln. No. 46 of 2008
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DATE |
ORDER WITH SIGNATURE OF JUDGE |
13.5.2008
Mr. Khalid Iqbal Memon, advocate for applicants.
Mr. Nisar Ahmed Abro, State counsel.
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KHAWAJA NAVEED AHMED, J:- There are counter cases between the parties in case F.I.R No.32/2007 Police Station Muhammadpur Odho. One Fateh Ali has died while in counter F.I.R No.33/2007 . Mst. Jeewan has died with firearm injury while Mst. Shahzadi and Mst.Nazeeran had received firearm injuries. Accused Ghulam Nabi and Jan Muhammad are also injured and they have received firearm injuries.
2. Brief facts of the case F.I.R No.32/2007 are that complainant Sajan Katohar is residing alongwith his relatives in village Sobo Khan Katohar. His niece Mst. Inayatan d/o Ali Hassan Katohar is married to Ghulam Nabi, the present applicant. She used to reside with her husband. On the day of incident early in the morning Sajan s/o Kaloo Katohar informed that Mst.Inayatan had been murdered. Hearing that, the complainant alongwith Muhammad Nawaz and cousin Fateh Ali went to the house of Sajan. They had seen that an old lady Mst.Shahzadi was standing along the side of dead body of Mst.Inaytan and no male member was available. Complainant had brought dead body on the cot of his house where he had seen marks of strangulation on the neck of Mst. Inayatan which were swollen. Upon seeing these injuries the complainant alongwith his companion went to the house of Abdul Nabi, Ghulam Nabi and Jan Muhammad all sons of Sajan Katohar. It is alleged that they were armed with weapons. Upon seeing the present complainant party they started firing. Accused Abdul Nabi fired straight shot at Fateh Ali, co-accused fired from his gun and these people had taken refuge behind pagdandi. There was firing from both the sides.
3. The facts of F.I.R No.33/2007 are reproduced hereunder:-
“Complaint is that I reside near village Sobo Khan Katohar along with my three sons Abdul Nabi, Ghulam Nabi and Jan Muhammad. We cultivate our land. Sobo s/o Bakhshan is our relative. We have matrimonial relationship. My son Ghulam Nabi is married to Mst. Inayatan d/o Ali Hassan Katohar who resides with her. Since some time Mst.Inayatan used to remain sick. Yesterday in the evening Mst.Inayatan was not well. I, Rasool Bux s/o Niaz Ali and Mir Gul s/o Suhno took Mst.Inayatan on bullock cart went to Punhoon Bhatti. On the way her maternal son of Thangai and her maternal grand father Thangai s/o Mevo met us, they also saw and talked with Mst.Inayatan, but she did not respond. When we reached near Punhoon Bhatti, Mst.Inayatan expired. We brought dead body to our house later on I, Mir Gul and Rasool Bux s/o Niaz Ali informed Sobo and others, but they did not turn up. Again I sent message through Mir Gul and Rasool Bux, but they did not come. Then in the morning Sobo and others came to us and took the dead body of Mst.Inayatan to their house. At about 8.00 in the morning Sobo, Ali Hassan, Habibullah all three sons of Bakhshan came armed with K.ks, 4.Sevo, 5.Gul Hassan, 6. Dost Ali all sons of Thangai, out of them Sevo was armed with Rifle while others were armed with guns, 7.Tillo s/o Miraj, 8.Fateh Ali s/o Muhammad Sallah, 9.Nabban s/o Ali Hassan and two unidentified persons who can be identified if seen again armed with guns. Sobo raised hakkal and said that “you have killed Mst.Inayatan by strangulating her and we will also kill you” saying so all the accused persons started firing at us with intention to kill with their respective weapons, my son Ghulam Nabi and Jan Muhammad received injuries, I and my sons took refuge in jungle. During firing, we heard cries of our ladies. When the firing stopped we came to our house and saw that my wife Mst.Shehzadi, sister-in-law Mst.Jewan w/o Niaz Ali and sister-in-law Mst.Naziran w/o Abdullah had received injuries. Leaving the injured persons at the place of incident I have come and report that above mentioned accused with common intention have leveled allegation of strangulating Mst.Inayatan and have firing with deadly weapons with intention to kill and the above named have received injuries. I am complainant pray for justice.”
4. Learned advocate for the applicant has argued that there are causalities from both sides and the incident had taken place at the house of the present applicants and it is yet to be determined by way of evidence as to who was the aggressor. He has relied on the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq (1996 SCMR 1845). Relevant portion is reproduced hereunder:
“16. 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 SCMR 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.Shafiqan v. Hashim Ali and others (1972 SCMR 682).
17. In this case contentions are raised on behalf of both the parties to the effect as to which version in the F.I.Rs is correct and which party is aggressor and which party is aggressed. Hence, the contentions relating to these questions can be gone into and decided by the trial Court after elaborate evaluation of the evidence recorded by it. We after careful consideration of the orders passed by the High Court and the contentions raised before us on behalf of both the parties, are of the view that the reasoning given by the High Court for the grant of bail is not perverse or capricious warranting interference by this Court. For this proposition reliance is placed on the cases of Ahmed v. Sheru (1979 SCMR 526) and Tariq Bashir v. The State (PLD 1995 SC 34).”
5. He has also relied on the case of Muhammad Murad v. The State reported in 2002 P.Cr.L.J. 1051. Relevant portion is reproduced hereunder:-
“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 an 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. “
6. Learned State counsel has no objection.
7. I have heard both the learned counsel as well as perused the case law. It is an admitted position that there are counter cases between the parties and incident has taken place at the house of the present applicants. It is again admitted position that one woman Mst.Jeewan had died on the side of present applicants while Mst.Shahzadi, and Mst.Nazeeran had received firearm injuries. The present applicants Ghulam Nabi and Jan Muhammad have also received firearm injuries. In the circumstances it is yet to be determined at the trial as to who was aggressor. The case of prosecution requires further enquiry under section 497(2), Cr.P.C and pending such enquiry I order release of applicants on bail upon their furnishing surety in the sum of Rs.100,000/- each and P.R bond in the like amount to the satisfaction of the trial Court.
Judge