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---S. 497--Penal Code (XLV of 1860), S. 302--Bail, grant of--Cross-cases filed by each party against the other--One man on either side loosing life -and each party claiming to have killed man of other side in exercise of right of private defence--Opposite party already granted bail--Question as to which party was in fact aggressor yet to be established--Petitioners allowed bail, in circumstances.

Malik Noor Muhammad Awan for Petitioners.

Syed Zulfiqar Haider for the State.

Inayat Ullah Cheema for the Complainant.

Muhammad Sultan and Fateh Khan have applied for the grant of bail who have been arrested for the murder of one Nazir, vide case F.I.R. No. 49, dated 2-9-1986, Police Station Wan Buchhran, District Mianwali.

2. On 2-9-1986 at 5 p.m., Sher Muhammad complainant with his. brother Nazir deceased and one Muzaffar were passing through a village lane. When they reached in front of Baithak of Muhammad the petitioners accompanied by Jan Muhammad raising Lalkara that they would teach a lesson to Nazir deceased for passing through their lane, opened fire on him. The shot fired by Jan Muhammad hit Nazir deceased on the legs whereupon Nazir fired back with his licensed gun at Jan Muhammad hitting him on his face. Then Sultan and Fateh Khan, petitioners, fired with their guns at Nazir hitting him in the abdomen and right hip. As a result of these injuries Nazir died in the hospital later. Motive for the attack was stated to be that Nazir deceased was suspected of having illicit relations with Mst. Phaphi, a relative of the petitioners.

3. The petitioners' bail plea was declined by Additional Sessions Judge, Mianwali, hence this application. I have heard learned counsel for the parties and also perused the record.

4. It may be stated that Jan Muhammad co-accused of the petitioners, had died the same day in the hospital due to the fire-arm injuries suffered by him during this occurrence. A case regarding his murder was registered under F.I.R. No. 50 on the same day at the same police station. Bahadar, brother of Jan Muhammad deceased disowned the story given in F.I.R. No.50 and filed a private complaint alleging that on the day of occurrence as sequel to an earlier quarrel on fateful day Nazir deceased alongwith his brothers, namely, Dost Muhammad, Ghulam Muhammad and Rabnawaz armed with guns came to their residence and attgrcked his brother Jan Muhammad and that Nazir (deceased) was shot at the self-defence. After holding preliminary inquiry the trial Court has summoned the aforesaid three brothers of Nazir deceased as accused in the complaint case under section 302/34, P.P.C.

5. The above narration shows that there are cross-cases filed by each party against the other. One man on either side has lost life. Each party claims to have killed the man of other side in exercise of right of private defence. It is, however, noteworthy that the occurrence took place near the house of the petitioners. It is intriguing that at the time of occurrence Nazir deceased while passing in front of petitioners' house was armed with gun. In the circumstances, I am of the view that this being a case of counter-version it still remains to be established as to which party was in fact the aggressor It may be further stated that the opposite party has been granted bail by this Court, therefore, in order to place both the parties on equal footing I feel inclined to allow this petition. The petitioners are directed to be released subject to their furnishing bail bonds in the sum of Rupees fifty thousand (Rs. 50,000 only) each with two sureties each in the like amount, each to the satisfaction of trial Court.

S.G.D./M-199/L Bail allowed.

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