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Criminal Miscellaneous No. 144 of 1977, decided on 24th Jane 1977.

-----S. 498-Bail-Cross-cases-Sudden fight -Occurrence taking place ova spur of moment and both parties sustaining injuries-Avail able material not indicating which party initiated aggression---Accused, held, rightly enlarged on bail-Penal Code (XLV of 1860), S. 307.-[Bail-Cross-ease].

Ss. 497 tit 498--Bail-Cross cases, categories of.-[Bail--Cross-case].

There are three categories of cross-cases. The first would be in which out of the two parties, prima facie there is a case against one party to have initiated aggression on the other party and the latter party has acted in self-defence. The party that acted in self-defence would evidently be entitled to bail. The -second would be in which two opposite-parties have, by chance, come across and out of fear have a9saultod each other. In that case, both parties would be entitled to hail on the assump tion that they have acted in self-defence. The third would be in which two opposite-parties have indulged in the fight at the spur of moment. 1n that case, unless evidence is recorded, it has yet to be determined as to which party has committed aggression.

Abdulluh Jan Mirza for Petitioner.

Malik Saeed Akhtar for Respondent No. 1.

Mufti Muhammad Idris, A.-G. for the State.

Date of hearing: 24th June 1977.

This is an application for the cancellation of bail granted by the learned Sessions Judge, Abbottbad, to accused/respondent Gal Zaman in a case under section L07, P. P. C.

In this case, two counter-F.I. Rs. were lodged by the parties at P. S. Havelian on 13-2-1977 charging each other to have committed aggression upon them. It may be mentioned that the parties are contiguous neighbours having common roof over their kothas. In F. I. R. No. 25, complainant/ petitioner Munawar Din has alleged that or the day of occurrence, the accused was putting mud on the roof over his kotha. He prevented the accused/respondent from doing so, whereupon ho fired two pistol shots at him one of which went astray and the other hit him in his abdomen. As against this the accused/respondent has in F. I. R. No. 26 alleged that complainant Munawar Din questioned his act of putting mud on the roof and he replied that the Rain water fell into his courtyard, as it passed through the roof over his kotha, and in order to divert its direction, he was preparing a muddy blockade, whereupon an altercation ensued between the two in consequence of which complainant Munawar Din dealt him stick as well as kick and fist blows.

The complainant and accused/respondent were medically examined and it transpired that the former had sustained nine injuries out of which two were opined to have been caused with a sharp-edged weapon. The accused/ respondent later alleged that the' complainant had, in causing injuries to him 9n the occurrence, used knife.

The learned counsel for the complainant/petitioner contended that in his F. I. R. No. 26, the accused/respondent has not alleged that his client had used knife in the commission of the offence and thus no reliance can be placed on his allegations. According to him, the injuries found on the person of accused/respondent would appear to be self suffered in order to save himself from legal punishment fee further contended that even if it is taken to he a cross-case, yet the accused/respondent would not be entitled to bail, as he has, according to the medical evidence, cause grievous fire-arm injury to the complainant. In support of big contention he referred to Muhammad Yousaf v State (P L D 1977 Pesh 17).

At this stage, no notice can be taken of what the learned counsel has contended. From the circumstances of the case, it is clear that the occurrence had taken place at the spur of moment and both the parties sustained injuries. In far as the contention of the learned counsel that the injuries found on the person of accused/respondent are self-suffered is concerned, it can be gone into after evidence is recorded by the trial Court. As regards the authority rolled upon by him, he seems to have misconceived it. It is true that in that case, a learned Judge of this Court has held that there is no rule under which an accused/person of cross-case is entitled to be released on bail. Yet his Lordship has held that apt accused person is entitled to bail in a cross-case if on the face of the record, he seems to have acted in self-defence. In other words, if it is not clear as to which party has committed aggression for the purpose of bail it will be assumed that every accused has acted in self-defence. It may here be noted that there are three categories of cross-cases. The first would-bas in which out of the two parties, prima facie there is a case against one party to have initiated aggression on the other party and the latter party has acted in self-defence. The party that acted in self-defence would evidently be entitled to bail. The second e would-be in which two opposite-patties have, by chance, come across and out of fear have assaulted each other. In that case, both parties would be entitled to bail on the assumption that they have acted in self-defence. The third would-be in which two opposite-parties have indulged in the fight at the spur of moment. In that case, unless evidence is recorded; it has yet to be determined as to which party has committed aggression. The cases in hand would appear to come within the third category.

On going through the material of this case made available for the present, it is not clear as to which party has initiated the fight. The learnedly Sessions Judge was, therefore, right to enlarge the accused/respondent on bail and I do not see any reason to interfere with his order.

This application is, therefore, dismissed

S. A. H. Application dismissed.

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