2016 PLP 1503 (YLR)

HAFIZ SHAHID NADEEM KAHLOON, J.

Ahmad Hussain, the accused-petitioner seeks post arrest bail in case FIR No.99-2015 dated 28.03.2015, registered under Sections 302, 337/A(i), A(ii), L(ii), 148/149, P.P.C., at Police Station Abdul Hakim, District Khanewal.

2. The brief facts as per narrated by prosecution in FIR, are that on 28.03.2015 at about 4.15 pm, petitioner and his co-accused while armed with pistols formed unlawful assembly and in furtherance of their common object, launched murderous assault upon the complainant party as a result of which Muhammad Akhtar, son of the complainant, succumbed to the injuries suffered by him and complainant also sustained injuries.

3. Arguments heard and record perused.

4. Allegedly allegation against the petitioner is that he made fire-shot from his pistol upon Muhammad Akhtar, landing on his left arm, whereas co-accused also made fireshot from his pistol landing the beneath of left armpit of Akhtar, who succumbed to the injuries suffered by him. As per post mortem report, only injury No.1 for causing to the Akhtar (deceased) is attributed to the present petitioner and such injury is not cause of death of the deceased. During the incident, the deceased also made two fire-shots hitting on right side of chest and right wrist of the petitioner and one fireshot on co-accused Norang hitting on his left buttock which passed away through and through as is evident from their medico legal reports and report under Section 173 Cr.P.C. submitted on 26.04.2015, but these facts have been suppressed by the complainant at the time of lodging of FIR. As per above circumstances, prima-facie, it appears that the petitioner side in self defence may be made fire-shots upon the deceased and they had a right of private defence and whether they exceeded, it would only be considered during the trial of the case, as per law laid down by the Hon'ble Supreme Court of Pakistan in case reported as "Mitho v. The State" (1978 SCMR 231).

5. Subsequently, cross-version was put forward by the accused party and report under Section 173, Cr.P.C. in State case as well as in cross-version has been submitted before the learned trial Court. The vicarious liability for causing injuries either to the injured witnesses or deceased and also which party is aggressor and which party is aggressed upon, will be ascertained by the learned trial Court after recording the evidence. Reliance in this regard can be placed in cases reported as "Muhammad Shahzad Siddique v. The State and another" (PLD 2009 SC 58), "Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others" (1996 SCMR 1845), "Fazal Muhammad v. Ali Ahmad" (1976 SCMR 391), "Mst. Shafiqan v. Hashim Ali and others" (1972 SCMR 682). This case to the extent of petitioner also covers by subsection (2) of section 497, Cr.P.C. Even other-wise, during the investigation nothing has been recovered from the petitioner and his presence has been found established empty hand at the scene of occurrence and declared innocent by the police, which was never challenged before any forum by the complainant party. The accused persons from complainant side were also granted bail by learned trial Court under Section 91, Cr.P.C.

6. It is settled law that in cross-version if one party is allowed bail then other party also becomes entitled for the same treatment as per law laid down by this Court in case reported as "Muhammad Ashiq v. The State and another" (2013 YLR 1133) and also as per law laid down by the August Supreme Court of Pakistan in case reported as "Muhammad Shahzad Siddique v. The State and another" (PLD 2009 SC 58) wherein it has been held that in cases of counter-versions arising from the same incident, one given by the complainant in FIR and the other given by the opposite party, are covered for the grant of bail on the ground of further inquiry as contemplated subsection (2) of Section 497 Cr.P.C. In such cases normally bail is granted on the ground of further inquiry.

7. The petitioner has been languishing in jail since 17.04.2015 and no more required for further investigation which is complete. Hence, his continuous incarceration in jail would not serve any beneficial purpose at this stage to the prosecution. Therefore, the petitioner is entitled to the concession of bail.

8. The learned counsel for the complainant in his support has referred case law reported as "Allah Bachayo @ Bachoo v. The State" (2013 PCr.LJ Sindh 1387), "Khalil Ahmed v. The State and another" (2013 PCr.LJ 389), "Muhammad Abbasi v. The State and another" (2011 SCMR 1606) and "Raja Ibrar Hussain v. The State" (2008 PCr.LJ 1604, which are not applicable to the facts and circumstances of the present case.

9. As a sequel and crux of my foregoing discussion is that this petition is accepted and the petitioner is admitted to bail in the sum of Rs.2,00,000/- (Rupees two lacs) with two sureties in the like amount to the satisfaction of learned trial Court. HBT/A-145/L Bail granted.