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Criminal Miscellaneous Nos. 403 and 405 of 1976, decided on 12^th November 1976.

-----Ss. 497 & 498-Bail-Right of private defence palpable from record and fact as to which side initiated criminal transaction not certain-Accused of cross-case, is such circumstances, ordinarily enlarged on bail-Considering such case as a rule, however, not in accord with safe administration of justice-Magnitude of loss or quantum of injuries sustained by a party-Held, does not entitle such party to benefit of bail.-[tail].

In a case where right of private defence is palpable, from the record where it is not reasonably certain as to which side initiated the criminal transaction, the accused of the cross-case are ordinarily enlarged on bail, but to consider it a rule is not in accord with safe administration of justice. It should also be made clear that it is not the magnitude of loss or the quantum of injuries sustained by a party in an incident which entitles that party to the benefit of bail but the facts and circumstances dovetailing in this direction roust be kept in view.

Bahadur and 9 others v. The State 1975 P Cc. L J 163 and Qazi Manzoor Hussain and 4 others v. The State 1975 P Cr. L J 1375 not applicable.

-- S. 172(2)-Object and scope.

Queen-Empress v. Mannu (1897) 19 All. 390 ref.

S. Masoom Shah for Petitioner.

Mufti Muhammad Idris, A: G. assisted by S. Fakhre Alam for the State.

Date of hearing: 12th November 1976.

This order will dispose of---

(1) Cr. Misc. No. 403/76, bail application of Muhammad Yousaf,

(2) Cr. Misc. No. 405/76, application for cancellation of bail of Khawas Khan and three others allowed to them by the order of 20.5-76 of the M. I. C. maintained by the Sessions Judge by his order of 24-8-76.

2. These applications arise of the same incident regarding which counter reports were made. In point of time F. I. R. No. 84 was the first made by Dilbar son of Faqir Muhammad on 16-5-76 at 19.00 hours in Police Station, Havelian. The reporter on hearing noise at a short distance, ran to the spot of occurrence from his house; and saw Yousaf armed with rifle while Miskeen and five others named in the report were standing armed with sticks, where Rustam (deceased of this report) was there and Yousaf was resilient on Rustam's goats having damaged his plants and Rustam was refuting it. The row between the two attracted Bahadur, Ayub and others and in the meanwhile Yousaf fired a shot at Rustam causing his death, followed by one shot each at Bahadur and Ayub who were also hit. The assailants while departing from the scene of occurrence at some distance were met by Khanizaman who on reprimanding Yousaf was also fired at causing his death. Yousaf petitioner is the moving figure charged for the murders of Rustam and others by firing. The post-mortem reports support the reporter in fixing the responsibility of homicide on Yousaf alone. This version is reflected as well in the site plan connecting the petitioner, subject to development at the trial. Pir Masoom Shah Advocate, learned counsel for the petitioner vehemently suggested the benefit of the cross-case registered vide F. I. R. No. 85, the same day at the instance of Gulzaman at 19-30 hours to the effect that on being called out from his house by Yousaf who wanted his i.e. Gul Zaman's company for taking to pound the goats of Rustam and in this errand Yasin and others joined them when they were encountered by Khawas who caused him (Gul Zaman) injuries over his legs by a fireshot followed by the fire shots of Ayub and Jabbar causing injuries to Mir Mohammad and Yastn. None of the combatants on either side bore the mark of scuffle, prima facie, which militates against the benefit of the cross-case and for that matter the right of private defence. The nature of injuries sustained by those on the side of Yousaf and the circumstances under which these injuries could have been caused to them are the material factors to be scrutinised later at the stage of trial. I do not feel inclined to extend to the petitioner the benefit of cross-case on the authority of Bahadar and 9 others v. The State (1975 P Cr. L J 163) and Qazi Manzoor Hussain and 4 others v. The State (1975 P Cr. L J 1375). The facts of both the precedent cases are not similar to the one under consideration and I am obliged to observe that each criminal case has its own peculiarity and must be decided on its own facts. The petitioner in the former case namely Jaffar Ali and his accomplices bore as many as 43 injuries including 4 injuries by sharp-edged weapons sustained by Jaffar Ali himself. The distinguishing feature of the latter case quoted in support is that the complicity of the accused persons in the cross-case was considered doubtful on the strength of the evidence of responsible officers who were on duty for peacefully conducting the procession. I am not aware of a case nor was quoted any before me where as a rule accused person of the cross-case is entitled to be released on bail. I am no unmindful of the fact that in a case where right of private defence is palpable from the record where it is not reasonably certain as to which side initiated the criminal transaction, the accused of the cross-case are ordinarily enlarged on bail, but to consider it a rule is not in accord with safe administration of justice. It should also be made clear that it is not the magnitude of loss or the quantum of injuries sustained by a party in an incident which entitles that party to the benefit of bail but the facts and circumstances dovetailing is this direction must be kept in view. For these reasons I do not feel Inclined to release Yousaf petitioner on bail.

3. Coming now to Criminal Misc. No. 405/76 wherein Gul Zaman reporter of F. I. R. No. 85 seeks cancellation of bail of Khawas and others granted to them by the learned Magistrate and armed by the learned Sessions Judge, Hazara. Learned counsel appearing for Gulzaman seriously questioned the order of learned Sessions Judge who while rejecting the petition for cancellation of bail observed: -

I have gone through the record, the impugned order and the last case diary of the police record dated 25-5-1976 and have come to the conclusion that the discretion in this case has been properly exercised.

Subsection (2) of section 172, Cr. P. C. empowers any criminal Court t send for the police Diaries of a case under inquiry or trial to be used not as evidence in the case but to aid it in such inquiry or trial. The object and scope of the section is stated in Queen Empress v. Mannu ((1897) 19 All. 390) as follows:-

The early stages of investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police, and until the honesty, the capacity, the discretion and judgment of the police can be throughly trusted, it is necessary, for the protection of the public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information true, false or misleading, which was obtained from day to day by the police officer who was investigating the case and what were the lines of investigation upon which such police officer acted.

The underlining" by me, should in my view be an answer to the objection, however, with the remark that the impugned observation, can hardly be the last word on the merits of the case at the trial. The aforegoing discussion is sufficient to come to the conclusion that there is no merit in this petition and the bail order of Khawas and others stands.

Both the applications are dismissed.

S. Q. Applications dismissed.

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