2018 PLP 128 (YLRN)

SHAHID HAMEED DAR, J.

The petitioner, Tariq Mehmood seeks post-arrest bail in a cross case, recorded for offences under sections 302, 324, 147, 148, 149 P.P.C. on 25.12.2015 on the statement of Muhammad Yousaf, during investigation of case FIR No.743/15, dated 25.12.2015, under sections 324, 148, 149, P.P.C., registered at Police Station Sambrial (Sialkot).

2. The allegation against the petitioner is that he, being armed with iron rod, joined by his armed co-accused, trespassed on agricultural land of Muhammad Yousaf (complainant) at about 12.00 noon on 24.12.2015, where they, with a view to wrest possession thereof, attacked those present there and sent nine persons, Muhammad Ishaq, Muhammad Atif, Nauman, Mst.Iffat, Mst.Sughran, Khalil, Shoaib, Banaras and Muhammad Yousaf (complainant) crying to the ground in severe injured condition; one out of them, named Ishaq died due to the injuries on the following day; the motive behind the occurrence was a dispute between the parties over possession of the said land.

3. The story of FIR, as narrated by Tariq Mehmood (petitioner) revealed that Yousaf etc., twenty seven (27) in number, being armed with different weapons, invaded his land so as to forcibly grab it, which ensued in a fight, wherein seven persons, namely Ansar Farooq, Mazhar Iqbal, Ali Raza, Nazar Hussain, Amir Sajjad, Mustansar Farooq and Mst.Kausar Bibi received multiple injuries on their persons, as they resisted the aggression of the intruders.

4. After hearing the learned counsel for the parties and perusing the record, it is observed that nine persons from the complainant side of the FIR-case and seven persons from the complainant side of the cross-case, named as above, got injured during the alleged occurrence and they all but Muhammad Ishaq, who succumbed to the injuries on 26.12.2015, luckily survived and rendered statements under section 161 Cr.P.C. in support of their respective/parallel stories. The fatal injury on the head of Muhammad Ishaq (deceased) has been attributed to the petitioner, as is manifest from the cross-case. The tally of the injured of the cross-case is seven, including Muhammad Ishaq, who died on 26.12.2015 due to the injuries sustained. The bone of contention was a piece of land, regarding which both the sides made counter claims as to being in its possession since long. It, thus, appeared to be a case, wherein both the sides tested their muscles either to maintain ones possession over the disputed land or to snatch it from the other side. The force used by both the sides was immensely massive as a troupe of sixteen persons got injured on both the sides during the occurrence. Some of the accused of the FIR-case were armed with firearms, which they used effectively and caused heinous injuries on the persons of Ansar Farooq, Manzoor Iqbal and Ali Raza. In contrary to it, none of the accused of the cross-case, including the petitioner, carried any firearm during the alleged occurrence.

5. Both the parties cried hoarse as to their possession on the disputed land at the relevant time of the alleged occurrence. There exists Khasra Girdawari, which showed that Tariq Mehmood (petitioner) cultivated the disputed land being tenant at will, since 2007. Both the FIR-case and the cross-case stood the test of investigation and separate reports under section 173, Cr.P.C. have been submitted before the court(s) concerned by the police vide case diary dated 24.6.2016. It could be a mind-boggling factor to resolve at this stage, as to which of the parties spoke the truth and which hasn't. It has been jointly contended by the learned counsel for both the sides that all the accused of FIR-case, except Nauman have already been granted post-arrest bail and so is the position of the cross-case, wherein the petitioner alone was behind the bars. The question of initiation of aggression may only be answered by the learned trial court after recording evidence of the parties at trial. Though the investigating officer has speculated about the start of aggression by the complainant-party of the FIR-case, yet, this opinion is merely a whimsical thought, which is not based on any cogent material. It has been thought of and held proper by the apex court as well as by this court on so many occasions that the investigating officer in such like situation, should not arrogate himself in dubbing one side as aggressor and the other aggressed upon, as such a perplexity could only be puzzled out during the course of trial. Notwithstanding the fact that a fatal injury on the head of Muhammad Ishaq (deceased) has been attributed to the petitioner, his case still called for further probe into his guilt within the scope of section 497(2) Cr.P.C. for the reasons recorded hereinabove. The judgments relied on by the learned counsel for the petitioner, Muhammad Zahid Umar v. The State and others (2016 SCMR 1246), Fazal Muhammad v. Ali Ahmad and 3 others (1976 SCMR 391), Mst. Shafiqan v. Hashim Ali and another (1972 SCMR 682), Shoaib Mehmood Butt v. Iftikhar-u-Haq and 3 others (1996 SCMR 1845), Ali Ahmad v. The State (1976 PCr.LJ 1323) and Muhammad Shahzad Siddique v. The State and another (PLD 2009 SC 58) plenteously served the cause of the petitioner in getting bail to him. 5(sic). Therefore, this application is accepted and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs.10,00,000/- (ten lacs) with two sureties each in the like amount to the satisfaction of the learned trial court. WA/T-12/L Bail granted.