ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.Bail.Appl.No.S-  113  of  2017

                                    Cr.Bail.Appl.No.S-  228  of  2017

DATE        ORDER WITH SIGNATURE OF JUDGE

22.06.2017.

Mr. Ghulam Nabi Jarwar, Advocate for applicant in Cr.B.A.No.S-113/2017 and for complainant in Cr.B.A.No.S-228/2017.

Mr. Muhammad Zaman Zaur, Advocate for applicants in Cr.B.A.No.S-228/2017 and for complainant in Cr.B.A.No.S-113/2017.

Mr. Shahid Ahmed Shaikh, A.P.G. for the State.

                             =

          Applicant Arab seeks post arrest bail in Crime No.14 of 2016 registered at PS Khorwah District Badin u/s 302, 324, 34 PPC whereas applicants Gul Sher Mallah and Haji Mallah seek post arrest bail in Crime No.18 of 2016 registered at PS Khorwah District Badin u/s 147, 148, 149, 337-A(i), A(ii), 337-A(iv), 337-A(v), 337-F(vi), 504, 35 PPC.

2.       Precisely, prosecution story in both the cases is that due to dispute on the land accused named in FIR No.14/2016 caused criminal assault thereby one Abdul Majeed lost his life at the hand of accuse Haji whereas other witnesses also received injuries. In same way prosecution case in FIR No.18/2016 is that the applicants Gul Sher Mallah and Haji Mallah caused injuries to Arab and others.

3.       At the outset learned counsel for the applicant in Criminal Bail Application No.S-113/2016 contends that this is the case of sudden fight; motive is land; weapons used by both the parties are lathies and hatchets; both the sides received the injuries hence the genuineness of subsequent FIR No.18/2016 is not challenged by the other side therefore, the question of aggression and aggressed upon is to be decided by the trial court; applicant Arab’s role is only of causing injuries to one PW Aachar which is not falling within the prohibitory clause of sub-section 1 Section 497 Cr.P.C. In support of his contentions, learned counsel has placed reliance on the cases reported as SBLR 2012 SC 129, 1978 SCMR 346, 1996 SCMR 1845, 2009 SCMR 324, 2010 MLD 250, 1999 P.Cr.L.J 1840, 2004 YLR 44, PLD 2013 Peshawar 120, 1982 P.Cr.L.J 49, 2005 YLR 2512, 2005 P.Cr.L.J 596, 2003 P.Cr.L.J 414, 1999 P.Cr.L.J 1847, 2012 YLR 1309, 2010 P.Cr.L.J. 1885, 2004 YLR 875,

4.       In contra counsel for the complainant in Cr.B.A.No.S-113/2017 and for the applicants in Cr.B.A.No.S-228/2017 contends that three co-accused persons have been granted bail by the trial court whereas one accused has been granted bail by this court vide order dated 16.09.2016 hence on the rule of consistency applicants Gulsher Mallah and Haji Mallah are entitled for the concession of bail. In support of his contentions, learned counsel has relied upon the cases reported as 2016 SCMR 907, 2012 MLD 1182, 2012 MLD 1656, 2010 P.Cr.L.J 379, 2016 P.Cr.L.J 107 and PLJ 2008 Cr.C. (Lahore) 299).

5.       On the other hand, learned A.P.G. contends that by order dated 19.12.2016 bail application filed by the accused Basar in Crime No.14/2016 was dismissed hence the case of Arab is not on the same footings therefore, he is not entitled for the concession of bail.

6.       Heard and perused the record.

7.       Perusal of the facts as narrated in both the crimes show that this is a case of sudden fight. Prima facie, both the cases relate to one incident as date and time of incident is one and same; in respective claims have received injuries hence question of aggressor and aggressed upon is involved in the instant case. It is by now a well-settled principle of law that in such like cases the bail is to be granted leaving the, involved question, open to be determined by trial Court. The exception to such principle is only that it would not be applicable in case it prima facie appears that other case is not genuine but has been made only to make out a counter-case. Such exception is prima facie not available as per peculiar facts of cases. As regard plea of learned A.P.G that co-accused Basar was earlier refused bail by this court. I have perused that order which shows that since in other crime none was granted bail at such time but by now the scenario is changed as one accused has been granted bail by this court whereas three accused have been granted bail by the trial court and two accused are agitating for bail before this court. The grant of bail to accused of counter-cases, involving question of aggressor and aggressed upon, would also tilt the scale in favour of grant of bail to accused of other counter-case.  

8.       Under these circumstances, applicant Arab is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.100, 000/- (Rupees one lac) and P.R. bond in the like amount to the satisfaction of the trial court whereas accused Gulsher Mallah and Haji Mallah are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.25,000/- (Rupees twenty five thousand) each and P.R. bond in the like amount to the satisfaction of the trial court.       

                                                                                                JUDGE

Tufail