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Criminal Miscellaneous No. 2914‑B of 1979, decided on 9th October 1979.

----S. 497‑‑Cross‑cases‑Right of bail‑Accused for reasons of counter version or a counter case, held, not entitled to bail as a matter of right.‑[Cross‑cases].

---‑S. 497‑Petitioner accused of murder, though not attributed any injury to deceased yet a principal person responsible for offence as alleged‑Bail declined, in circumstances.

M. Ashrafuddin v. The State 1977 P Cr. L J 530 ; Khalil‑ur‑Rehman v. The State 1979 S C M R 168 and State v. Rabnawaz P L D 1974 S C 87 ref.

‑‑‑ S. 497‑Petitioner accused of murder not attributed any injury to deceased though participating in .incident and causing injuries to prosecution witnesses‑Petitioner in Jail for more than two years and case requiring further inquiry as to liability and nature of offence committed‑Bail allowed in circumstances.

Muhammad Akbar and 4 others v. The State and another 1978 SCMR7ref

Athar Rehman Khan for Petitioners.

Saiful Haq Ziai for the State.

Allah Wasaya, Allah Diwaya, Allah Rakha and Hakeem petitioners have applied for bail. All of them have been sent up .by Police Station (Sadar), Mailsi for offences under sections 302, 307, 452, 149 and 148 of Pakistan Penal Code in respect of the murder of Subhan, father of the com plaisant and attempted murder of Shah Muhammad son of the deceased, Karam Khatoon. wife of the deceased and one Hassan Bakhsh.

2. The case for the prosecution in brief is that Hakeem petitioner had abducted Mst. Sughran a niece of Subhan deceased. Subhan pursued the matter and got back the custody of Mst. Sughran. Hakeem petitioner felt it very much.

On the day of occurrence Hakeem went to the dhari of the deceased in pursuit of Mit. Sughran and Subhan deceased abused him and saw him out of the dhari. Annoyed by this he got all the co‑accused, out of which the petitioners were armed with sotas and Riaz and Allah Ditta co‑accused were armed with hatchets, and all of them attacked which resulted in the death of Subhan and injuries to the three witnesses mentioned above. On the petitioners side Riaz, Allah Ditta, Abdul Hakeem and Amman also suffered injuries, which according to the F. I. R. were caused in the exercise of right of self‑defence.

Two and a half months later Msr. Amman Mai filed a private com plaint against the complainant party in which the learned Magistrate has summoned the accused and they are on bail.

3. It has been contended by the learned counsel for the petitioners that this is a case of counter‑versions in which the other party was the aggressor and it is still a matter of enquiry as to which side was the aggressor. In this regard he has referred to M. Ashrafuddin v. The State (1977 P Cr. L J 530) and Khalil‑ur‑Rehman v. The State (1979 S .C M R 168).

It bas been. vehemently argued that foul persons injured on the side of the petitioners were examined by the same doctor on the same day and at about the same time and that some of the injures though simple in nature are on vital parts and have not been satisfactorily explained by the com plainant party.

4. Learned counsel for the State has controverted the arguments and vehemently opposed the bail. He has argued that all the petitioners are specifically named in the promptly lodged first information report, each of them was armed with deadly weapon, which he used effectively and as such they are not entitled to bail.

5. Both sides are injured. The complainant party has been summon ed in the cross‑case. I have perused the cases referred to by the learned counsel for the petitioners. Each case proceeds on its own facts and merits, particularly so in a criminal case as held by the Supreme Court in Rabnawaz's case (P L D 1974 S C.87). It cannot be held that the accused would be entitled to bail as a matter of right merely for the reason that there is counter‑version or a counter case filed by them May be, it may turn out to be a case of free fight in which case each person is responsible for his own act and therefore the liability of each will be determined regarding the role believed against him.

5. For the purposes of the disposal of this bail application it would suffice to say that Allah Diwaya and Hakeem petitioners are not attributed any injury to the deceased. Prima facie Hakeem petitioner is the cause of all‑ the trouble, he abducted Mst. Sughran and did not leave to pursue her despite her recovery and went to the dhari of Subhan Khan (deceased) and asked to leave the place, therefore, he is the principal, person who is responsible for the offence as alleged. In this view of the matter I do not find him to be entitled to bail at this stage and his bail application is dismissed.

6. However, Allah Diwaya petitioner is not attributed any injury t the deceased though he is stated to have participated in the incident and caused injuries to prosecution witnesses. He is behind the bars for more than two years, therefore, I am of the opinion that his case needs further enquiry as regards to his liability and the nature of the offence committed by him and in this regard I would refer to Muhammad Akbar and 4 others v. The State and another (1978 S C M R 7) and ‑ allow him bail in the sum of Rs. 10,000 with two sureties each in the like amount to the satisfaction of A. C. Mailsi.

Order accordingly.

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