HAMZA ALI HAMZA and others vs THE STATE

' SARMAD JALAL OSMANY, J.--- This petition calls in question the order dated 30-1-2009 passed by the learned Sindh High Court whereby Bail Application No,705 of 2008 of the petitioners was dismissed and pre-arrest bail was denied to them.

2. Briefly stated the facts of the matter per the F.I.R. Are that the petitioners had allegedly inflicted hatchet and Lathi blows on their victim Sambhoo, which was witnessed by the complainant and other witnesses.

3. Mr. Mehmood A. Qureshi, learned Advocate Supreme Court has firstly submitted that this is a case of cross-version since in the counter F.I.R. Lodged by the petitioners party seven accused have been nominated from the complainant side since they had caused injuries to two persons from the petitioners side. In support he relied upon Shoaib Mehmood Butt v. Iftikhar-ul-Haq PLD 1996 SC 1845. Secondly per learned Advocate Supreme Court the F.I.R. Had been lodged with a delay of about 17 hours since the incident is stated to have occurred on 24-7-2008 at 0800 hours whereas the F.I.R. Was lodged on the same day at 1700 hours. This would cause some doubt in the matter, which would give opportunity to the complainant to consult with his colleagues and others in order to rope in as many persons as possible. He has further submitted that all the accused in the counter case are on bail. Learned Advocate Supreme Court also relied upon Muhammad Shahzad Siddique v. State PLD 2009 SC 58.

4. On the other hand, learned Additional Prosecutor-General, Sindh has opposed the grant of bail on the ground that the petitioners had been nominated with clear role of having caused grievous injuries i,e, three incised wounds and 13 bruised and lacerations to Sambhoo, which have been documented by his medical report whereas only two persons from the petitioners' side have received minor injuries.

5. Mr. Muhammad Ashraf Leghari, learned Advocate Supreme Court appearing for the complainant has also opposed the grant of bail on the ground that mere registration of a counter-case is no reason for doing so. According to him, even in these circumstances a tentative assessment of the evidence available on the record is to be made which in the present case would amply display that it was the petitioners' party which was the aggressor since Sambhoo has received numerous injuries on his person whereas other persons from the petitioners' side have received only minor injuries. In support of his submissions he relied upon Arif Din v. Amil Khan 2005 SCM R 1402.

6. We have heard both the Advocate Supreme Courts and the learned Additional Prosecutor General, Sindh and perused the record with their assistance. Upon perusal of both F.I.Rs, Lodged by the parties against each other, it would appear that a free fight ensued between them in which hatchets and Lathis were used. Consequently, two persons from the petitioners side and one person from the complainant side received injuries. Though Sambhoo from the complainant side had been grievously injured and perhaps the other two persons from the petitioner's side had received minor injuries, it is difficult to ascertain at this stage as to who was the aggressor.

Consequently, it would be unjust to refuse bail to the petitioners particularly, when all the others from the complainant side are on bail.

7. The above are the reasons for the short order passed earlier whereby this petition was converted into an appeal and allowed and interim bail earlier granted to the petitioners was confirmed.