FALAK NIAZ Versus SHERDIL AND 3 OTHERS

This is an application under section 497(5), Cr.P.C. for cancellation of bail of respondents No. 1 to 3, in a case pending against them under section 302/34, P.P.C.

The brief facts giving rise to the present application are that on 14‑8‑1983 one Falak Niaz lodged a report at Police Station Jeckson inter alia alleging therein, that he is originally resident of village Punstay, Tehsil Charsaddah, District Peshawar, and is a student of Engineering. He resides with his brothers Asfandyar and Niaz Ahmed. His brother Asfandyar had kept stones on a vacant place behind public latrines on Hussain Bux Road. Sherdil Khan and his sons had removed the stones. Today at about 5‑55 p.m. his brother Asfandyar went to Sherdil Khan and told him that he wanted to construct a room for his cow, but you have removed the stones on which there was exchange of hot words between them. Sherdil Khan thereafter went to his house enraged and came back alongwith his son Shehzad and nephew Afzal. Sherdil Khan was armed with revolver while Shehzad and Afzal were armed with revolvers, they told Asfandyar that they are going to kill him so that the dispute is settled, and thereafter all the three fired at Asfandyar. His brother entered public latrines to save himself but he died on the spot on account of fire‑arm injuries. One Waseem child of Mohalla aged about 13/14 years was also present who also received fire‑arm injury and died. Zahir Shah, Shoukat and Shehzad were also present and had witnessed the incident.

On the other hand Afzal Khan respondent No. 3 lodged a report at same P.S. on 15‑8‑1987 at 8‑00 a.m. inter alia alleging therein that he is originally resident of Tehsil and District Peshawar and has been residing in Karachi alongwith his family since his birth. He has been carrying on business of supply of construction material. Sherdil is his uncle and father‑in‑law, and resides in a portion of house with him alongwith his family. In front of their house there is vacant place behind the public latrines, where they had kept stones which they used to utilize as and when required. Asfandyar alias Budha asked them not to do so and tried to remove the stones from the space. At 3‑30 p.m. he stopped him from doing so on which Asfandyar abused him and went away. His uncle Aslam had also asked Asfandyar not to do so. His uncle Aslam resides in the same street. At about 5‑30 p.m. he was putting curtains in his bus which was parked outside of his house, Asfandyar alias Budha came there and told him to stay there, and he is going to set him right. After some time Budha alongwith his 4/5 companions who were duly armed came there and told him that they will not spare him and will kill him. Asfandyar fired at him with a pistol which hit him on his leg and he fell down, thereafter his cousin Wazir took him to Civil Hospital where they did not give him any treatment and asked him to go to Jinnah Hospital. Then they went to Surgeon Rahim who admitted him and told him that he will be operated at 9‑00 a.m. next day. Police came there early in the morning and arrested him. The incident was witnessed by all Mohalla people.

After the F.I.R. was recorded the police arrested the respondents Nos. 2 and 3, and after necessary investigation the case was challaned before the Court. The respondent No. 1, surrendered in Court on 1‑8‑1987. The respondents moved an application for bail which came up for hearing before the learned Vth Additional Sessions Judge, Karachi (South), who was pleased to release them on bail vide order, dated 29th October, 1987 on the main consideration that there were counter‑cases between the parties, and both parties had fired at each other suddenly. There was no evidence as to who was responsible for firing at deceased Waseem. As far as Asfandyar was concerned he had received only one fire‑arm injury whereas the allegation of the prosecution was that he was fired at by all three respondents. That the injuries caused to respondent Afzal Khan which party was aggressor, and therefore, it was a case of further inquiry.

I have heard Mr. Chaudhry Iftikhar Ahmed learned counsel appearing for the applicant /complainant Mr. Khawaja Naveed Ahmed learned counsel appearing for the respondents Nos. 1 to 3 and Mr. Abdul Ghafoor Mangi, learned A.A.‑G. appearing for the State.

It was contended by Mr. Chaudhry Iftikhar Ahmed learned counsel appearing for the applicant that merely because there was counter‑cases between the parties, the accused could not claim bail as a matter of right. That applicant Sherdil was absconding for three months and, `therefore, was not entitled to bail even on this ground. That the learned Judge had erred in granting bail to the respondents.

Mr Khawaja Naveed Ahmed learned counsel appearing for the respondents Nos. 1 to 3 has contended that there were counter‑cases between the parties and it was yet to be seen as to who was the aggressor. That respondent Afzal Khan had received fire‑arm injuries at the hands of the complainant party but they had suppressed the same. That respondent Sherdil was a heart patient and such certificate was produced before the learned trial Judge. That he was at Peshawar at the time of incident and surrendered voluntarily the learned trial Judge had exercised discretion while granting bail to the respondents Nos. 1 to 3, and the bail can be cancelled only when it was shown that the order passed by the learned trial Judge was perverse, arbitrary, or illegal.

Mr. Abdul Ghafoor Mangi, learned A.A.‑G. appearing for the State has contended that since there are counter‑cases between the parties and respondent Afzal Khan has also received fire‑arm injuries which have not been explained by the complainant party, it was yet to be seen as to who was the aggressor. That there was no previous ill‑will between the parties and it appears to be a case of sudden flare up and, therefore, the order passed by the learned Judge does not call for interference.

I have considered the contentions of the learned counsel and have gone through the papers. It is an admitted position that there are counter‑cases between the parties, and both parties have sustained fire‑arm injuries. It is also clear that both parties have suppressed the part played by them in the incident. There is no definite allegation as to who was responsible for causing injuries to boy Waseem. As far as deceased Asfandyar was concerned the allegation is that all the three respondents fired at him but according to the Medical Certificate he had only one fire‑arm injury. The decisions relied upon by Mr. Chaudhry Iftikhar Ahmed learned counsel appearing for the applicant are with utmost respect distinguishable, and do not apply to the facts of the present case.

1. In Mushtaq Ali v. The State 1982 S C M R 766 petitioner Mushtaq Ali was accused in a case under sections 302, 307, 148, 149, P.P.C. He was refused bail by the trial Court and the High Court on the ground that deceased had died due to hatchet blow which was attributed to the petitioner alone. The petitioner moved the Hon'ble Supreme Court for bail, and it was observed that:‑‑

"It has not been established as to who had taken the law into his own hands. The act in itself had resulted in the death of one person for which the accused petitioner is charged and, therefore, the petition was dismissed."

2. In case of Anwar Khan v. The State 1978 S C M R 314 petitioner Anwar was accused in a murder case alongwith co‑accused. The allegation against the petitioner was that he gave a hatchet blow on the head of the deceased which resulted in his death. The case of the petitioner was that he had sustained 12 injuries and that his other co‑accused had also received some injuries and, therefore, he had a right of private defence. He was refused bail by the trial Court and the High Court with the observation that: "It appears to be a case of sudden fight between the parties, and each person was responsible for his individual act. It is clearly alleged in the F.I.R. that Anwar Khan petitioner gave fatal blow to deceased Altaf Hussain by a hatchet. The injury was found by the doctor to be dangerous to life. It was on account of this that the deceased died. The petitioner moved the Hon'ble Supreme Court for bail and the same was rejected. It was argued before their Lordships of the Supreme Court that the petitioner had a right of private defence, but their Lordships were of the view that the contention was not well‑founded. Without any evidence on the record it is not possible to raise any prima facie case in favour of the petitioner, and, therefore, the petition was dismissed.

3. In case of Muhammad Usman and another v. The State 1975 SCMR 391. The petitioners were accused in a case under sections 307, 325, 148 and 149, P.P.C. and the allegations against them were that they had fired at complainant Aziz‑ur‑Rehman and he had sustained three pistol injuries. They were refused bail by the trial Court as well as by the High Court. They filed petition before the Hon'ble Supreme Court but the same was rejected with the observations that: ‑‑

"Merely because there was a counter‑case of the occurrence in the F.I.R. lodged by one of the accused, Muhammad Afzal, does not in our opinion affect the discretion exercised by the learned Judge on the basis of the materials on record of the present case."

4. In Allah Wasaya and 2 others v. The State 1980 P Cr. L J 105, the accused were challaned under sections 302, 307, 452, 149 and 148, P.P.C. They had also lodged a counter‑report against the other side as 4 persons were also injured on their side That the accused had formed unlawful assembly and gone to the Dhari of the deceased in persuit of one Mst. Sughran who was previously abducted by one of the accused namely Abdul Hakeem, on which deceased abused Hakeem, accused being annoyed he took the co‑accused with him and attacked the complainant party in which one Subhan died and three witnesses were injured. The accused moved an application for bail before the trial Court which was rejected. They approached the High Court but the application of all accused was rejected except Allah Diwaya with the observation that: ‑‑

"Each case proceeds on its own facts and merits, particularly so in a criminal case as held by the Supreme Court in the case of Rab Nawaz P L D 1974 S C 87."

5. In the case of Sarwar Khan and 5 others v. The State 1983 P Cr. LJ 292, the accused were charged under sections 302, 307, 148 and 149, P.P.C. They applied for bail before the trial Court but the prayer was rejected. The accused moved before the High Court for bail, and the main ground raised in the application was that a cross‑case had been registered against the complainant party which was being investigated. The High Court was pleased to grant bail to those accused who were responsible for causing injuries to the witnesses only, but the bail was refused to the accused who had caused injuries to the deceased with the observation that: ‑‑

"As far as the contention that there are cross‑cases was concerned, I am of the considered opinion that the mere fact that there are cross‑cases, is not a good ground for the grant of bail at this stage, when in the counter‑case no definite conclusion has been arrived at. (As the counter‑case was still under investigation.)"

6. In the case of Muhammad Sadiq v. Sadiq and others P L D 1985 S C 182 it was observed by their lordships of the Supreme Court that: "The effect of abscondence, as explained by this Court in its two recent judgments, is that the person becoming fugitive from law loses some of the normal rights granted to accused persons by the procedural as also substantive law and disentitles himself to the concession of bail notwithstanding the merits of his case, unless he could satisfactorily explain the period of his abscondence", and the orders granting bail were set aside with the direction that the accused will be at liberty to move the learned Sessions Judge again for bail and if they can satisfactorily explain their alleged abscondence before him, they shall be entitled to the grant of bail by him.

In the case mentioned at serial No. 1 Mushtaq Ali v. The State, the bail was refused by the trial Court as well as by the High Court as the applicant was alleged to have caused the fatal hatchet blow to the deceased and, therefore, the Hon'ble Supreme Court refused to interfere with the order refusing bail to the petitioner. In the case mentioned at serial No. c the position wa‑ similar and the applicant was refused bail by the trial Court as well as by the High Court on the ground that the petitioner was responsible for causing fatal hatchet blow to the deceased, and the Hon'ble Supreme Court refined to interfere with the said order. In case of Muhammad Usman and another v. The State, the accused had fired at complainant who had sustained 3 pistol injuries, they were refused bail by the trial Court as well as by the High Court. They filed a petition before the Hon'ble Supreme Court and their Lordships were pleased to observe that merely because there was a counter‑case filed by one of the accused does not affect the discretion exercised by the learned Judge on the basis of the materials on record of the present case. In the case of Allah Wasaya and 2 others v. The State the accused had formed unlawful assembly and had gone to the Dhari of the deceased, they moved an application for bail before the trial Court which was rejected. Their application before the High Court was also dismissed and it was observed that each case proceeds on it's own facts and merits particularly so in a criminal case. In the case of Sarwar Khan and 5 others v. The State, the accused were refused bail by the trial Court, however, the High Court granted bail to those accused who were not responsible for causing injuries to the deceased but bail was refused to those accused who had caused injuries to the deceased. With regard to contention about cross‑cases, it was observed that since the cross‑case filed by the accused side was still under investigation, therefore, bail could not be granted on this ground.

From the above discussion it is clear that the most of the cases cited by the learned counsel for the complainant /applicants were the cases in which on one hand the bail was refused by the trial Court as well as by the High Court; and on the other hand specific role of causing fatal injuries to the deceased was attributed to the petitioners, and therefore, the Hon'ble Supreme Court had declined to grant bail to the petitioners. However, the facts of the present case are distinguishable on number of grounds. Firstly the trial Court has exercised discretion and granted bail to the respondent Nos. 1 to 3, and unless it is shown that the order of the trial Court was perverse, arbitrary or fanciful or that the respondents has misused their liberty, bail could not be cancelled. Secondly there was nothing on record to show as to who was responsible for causing fatal injury to the two deceased. Thirdly there were counter‑cases between the parties and there was allegation that all the 3 respondents had fired at deceased Asfandyar but he had received only one fire‑arm injury.

In the case of Jaffar and others v. The State 1980 S C M R 784 bail was granted to the petitioners by their Lordships of the Supreme Court on the ground that from the available material it could not be said as to who caused fatal injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry under section 497(2), Cr.P.C.

In the case of Mst. Shafiqan v. Hashim Ali and another 1972 S C M R 682 the accused were granted bail by the High Court on the ground that there were counter‑versions and it was yet to be seen as to who was the aggressor, and whether the respondents had committed an offence punishable with death or transportation for life. The complainant moved the petition for cancellation of bail but the same was dismissed on the ground that in the circumstances of the case bail was properly granted by the High Court. It was, however, left open to the petitioner to move for cancellation of bail after some evidence was recorded.

In the case of Ahmed v. Sheru and 8 others 1979 S C M R 526 it was observed by their Lordships of the Supreme Court that:‑‑

"The learned Judge in the High Court has given reasons in support of his decision to allow bail, which are neither whismical, arbitrary nor capricious. It was further observed that 4 persons from the side of the accused (respondents herein) .have also been injured, and the allegation is that they sustained injuries in the same transaction, which tends to support the view of the learned Judge in the High Court that this is a case of further inquiry."

So far the question of abscondence of respondent Sherdil was concerned the order shows that explanation was given by him that he was a heart patient and was at Peshawar at the time of incident. Moreover, he had surrendered before the Court voluntarily as submitted by Mr. Khawaja Naveed Ahmed before the bail application was moved and this fact was not controverted by Mr. Chaudhry Iftikhar Ahmed.

In view of the above discussion, I am of the considered view that looking to the facts and circumstances of the present case the learned Additional Sessions Judge has exercised discretion properly in granting bail to the respondents Nos. 1 to 3, and the order does not call for interference from this Court. The application is, therefore, dismissed.

M . Y. H . /F‑43/ K Petition dismissed.