2019 PLP 1622 (YLR)

FAROOQ HAIDER, J.

Through this petition, petitioners Khuda Bakhsh and Ghulam Haider seek pre-arrest bail in case arising out of FIR No.356/2018 dated 30.10.2018 registered under Sections 337-A(ii), 337-F(i)(v), 337-L(2), P.P.C. at Police Station Shidani Sharif, District Rahim Yar Khan.

2. After hearing learned counsel for the parties, learned law officer and going through the record with their able assistance, it has been noticed that occurrence took place on 28.10.2018 whereas FIR was recorded on 30.10.2018, however, it is mentioned in the FIR that Rupt regarding the occurrence was recorded on 28.10.2018 on the statement of Mehboob Hassan complainant. Learned law officer, on instructions provided to him by the police official, present in Court, and even himself after going through the record, has categorically stated that many persons from the accused side including present petitioner No.1 Khuda Bakhsh received injuries in the occurrence; they were got medically examined by the police and even their Medico Legal Reports were secured by the police on the same day i.e. 28.10.2018; Khuda Bakhsh (petitioner No.1) also reported the occurrence with regard to receipt of injuries by him and his companions to the police on the same day i.e. on 28.10.2018 and Rupt No.15 was incorporated in the Roznamcha on the same day, however, cross version was registered on 2.11.2018 on the basis of said Rupt. Learned counsel for both the parties have categorically stated at the Bar that all the accused persons of cross version case and FIR (except present petitioners) have been granted bail. In the FIR, Khuda Bakhsh petitioner No.1 has been alleged to have caused stick blow at left side of head of Peer Bakhsh but said injury has been declared as Shajjah-i-Khafifah, which is attracting offence Section 337-A(i), P.P.C. and same is bailable; another injury, which has been attributed in the FIR to petitioner No.1 Khuda Bakhsh, is regarding giving stick blow at the right leg of Riaz Ahmad but no such injury has been noted in the Medico Legal Report of Riaz Ahmad by the doctor. Although learned counsel for the complainant has vehemently argued that another injury available at back side of right palm of Peer Bakhsh has also been caused by Khuda Bakhsh but learned law officer on the basis of instructions provided to him by the police official, present in Court, and even himself after going through the record has categorically stated that neither in FIR nor in statement of any witness, said injury has been attributed to Khuda Bakhsh petitioner No.

1. In this state of affairs, to the extent of Khuda Bakhsh petitioner No. 1, there is only one injury, which get support from the medical evidence, and same is Shajjah-i-Khafifah, which is bailable. As far as case of Ghulam Haider is concerned, he has allegedly caused injury with blow of stick at the forehead of Mehboob Hassan complainant, said injury has been declared as Shajjah-i-Mudihah attracting offence under Section 337-A(ii), P.P.C. However, in peculiar facts and circumstances of the case, it is to be noted that in the alleged occurrence more than six persons from accused side received injuries, which fact is supported by Medico Legal Certificates available on the record, however, complainant with mala fide intention suppressed said fact and thus, complainant in joint venture with police concealed actual mode of occurrence at the time of registration of this case. It is important to mention here that although FIR was recorded after two days of the occurrence, and till that time Medico Legal Reports of injured persons of the accused party including Khuda Bakhsh (petitioner No.1) were already in possession of police yet said fact was not given any place in the FIR; this scenario constitutes mala fide, malice and ulterior motive on part of prosecution. Learned law officer after going through the record submits that allegations levelled in the cross version got recorded by Khuda Bakhsh petitioner No.1 have been established during investigation and complainant party of the FIR (Mehboob Hassan etc.) has been found as aggressor after thorough investigation. This state of affairs, ipso facto brings the case of both the petitioners into the ambit of further inquiry within the meaning of Section 497(2), Cr.P.C. In this regard, reliance can be placed upon the case of "Hamza Ali Hamza and others v. The State" (2010 SCMR 1219). As far as question of recovery of sticks from both the petitioners is concerned, it has been noticed that occurrence took place on 28.10.2018, hence more than four months have already lapsed, blood disintegrates after about three weeks and such recovery shall not advance the case of prosecution. Guidance has been sought in this regard from the case of "Malik Muhammad Aslam v. The State and others" (2014 SCMR 1349).

3. Resultantly, this petition is accepted and ad-interim pre-arrest bail already granted to the petitioners namely Khuda Bakhsh and Ghulam Haider vide order dated 28.1.2019 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only) with one surety each in the like amount to the satisfaction of the trial Court.

4. The observations in this order are tentative in nature and only for the purpose of disposal of instant petition. MQ/K-6/L Bail confirmed.