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Criminal Bail Application No. 660 of 1981, decided on 24th Septem ber, 1981.

‑‑‑ S. 497 ‑ [Murder‑case] ‑ Both parties coming prepared and in ensuing fight one losing his life on complainant's side while grievous hurt caused to others on both sides‑On basis of counter F. I. R and other material on record, nothing certain as to which of two parties aggressors and who exceeded right of private defence‑Bail confirmed, in circumstances.

Mst. Shafiqan v. Hasham Ali and others 1972 S C M R 682 and Muhammad Shafi v. Hakim Ali arid 7others 1978 S C M R 346 rel.

Muhammad Hayat Junejo for Applicants.

Sved Sarfraz Ahmad, Asstt. A.‑G. for the State,

This is a bail application by Mr. Muhammad Shafiq, Muhammad Sharif and Arbab Ali who alongwith 8 others namely. Sanaullah, Faizullah, Ghulam Sarwar. Hafiz Ghulam Rasool. Abdul Aziz, Ghulam Nabi, Muhammad Yousuf and Rahmatullah are accused in a case under section‑, 302, 307, 325 read with section 149, P. P. C. 147, 148, 504 and 114, P. P. C. now pending in the Sessions Court, Sukkur.

The facts giving rise to this application briefly stated, are that on 27th July, 1981, at about Tipahri time an incident took place in the course of which 5 persons on either side received injuries. From the side of the applicants accused Sanaullah reported the incident at Ghotki Police Station, 41 miles away at 7‑30 p. m,

A countercase was registered against the applicants and their Co. accused one hour later at 8‑30 p. m. at the same police station.

It is submitted by Mr. Muhammad Hayat Junejo learned counsel for the applicants that on the basis of F.I.R. and the material available on record it cannot be said with certainty at this stage which of the two parties were aggressors and who exceeded the right of private defence. He further submitted that due to counter versions the case becomes one of further enquiry. In support of his first submission the learned counsel has relied on 2 Judgments of Supreme Court in Mst. Shafiqan v. Hasham Ali and others (1972 S C M R 682) and Muhammad Shaft v. Hakim All and 7 others (1978 S C M R 346).

The cases cited by Mr. Muhammad Hayat Junejo clearly support him.

It is pointed out that even the Sessions Judge white dismissing the application for bail filed by the applicants has observed as follows :‑

"No doubt it will have to be decided finally as to which side was aggressor, but at present there appears that both sides had come well‑prepared and one side lost a man in this fight. grievous hurt was caused three other persons, fifth person got hurt."

Even otherwise learned Assistant Advocate‑General has no objection if the interim ba,l granted by order dated 25th August, 1981 is confirmed.

I therefore for the aforesaid reasons confirm the same.

The learned Assistant Advocate‑General on the question of entertain ing this application at Karachi has submitted that this Court can entertain any case at the main seat of the High Court under Special circumstances.

Mr. Muhammad Hayat Junejo has brought to my notice, Criminal Appeal No. 161/81 which has been entertained by the learned Chief Justice at Karachi though the matter pertains to Sukkur on the ground that the counsel for the appellant in that case was not in a position to go to Sukkur. Mr. Muhammad Hayat Junejo stated that he is also not in a position to go to Sukkur.

The learned Assistant Advocate‑General to view of order of the learned Chief Justice passed in Criminal Appeal No. 169/81 and the orders mentioned in the interim order of granting bail stated his no objection to the hearing of this case at Karachi, of coursq, he states so without prejudice to his right to raise this question in another case for the purpose of its full and final determination.

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