2005 PLP 2350 (YLR)

There are counter-cases between the parties in respect of one and the same incident which took place on the same time and place. One incident was reported by complainant Muhammad Ismail of this case being Crime No.47 of 2004 in which it was alleged that on the monetary dispute, the applicant Arif, his son Liaquat and Asghar came there. Applicant Arif caused Soti injury on the nose of the complainant and other accused had caused kicks and fist blows to him. The complaint was registered in the station diary as it was non-cognizable offence and after receipt of medical report, F.I.R. was lodged on 4-1-2004 by incorporating the facts of the station diary in 154, Cr.P.C. book.

2. The applicant, Arif lodged counter-case bearing Crime No.11 of 2004 against the complainant of this case and four other persons, alleging that they were armed with guns and hatchets and caused injuries to the applicant and his son Liaqat.

3. Learned Advocate for the applicant has stated that the medical report was obtained after three months of the incident; that it is yet to be determined as to which party is aggressor and that the applicant can claim right of private defence, therefore, the case of the applicant requires further inquiry as such, the applicant is entitled to the grant of bail as a matter of right.

4. Learned Advocate for the complainant has stated that criteria for grant of pre-arrest bail and after arrest bail are different; that for the purpose of pre-arrest bail, the applicant has to show mala fide on the part of police but the same is lacking in the present case. He has relied upon Murad Khan v. Fazal-e-Subhan PLD 1993 SCMR

82. He has further stated that mere filing of counter case is not sufficient to grant bail to the applicant. On the said preparation he has relied upon Nisar Muhammad Wassan v. The State 1992 SCMR

501. He has strongly opposed the grant of bail to the applicant.

5. Learned State counsel has stated that there are counter-cases between the parties and it is yet to be determined as to which party is aggressor, therefore, he has no objection to the confirmation of bail to the applicant.

6. Admittedly there are counter-cases between the parties. The Honourable Supreme Court of Pakistan in the case of Shoaib Mehmood Butt v. Iftikharul Haq 1996 SCMR 1845 at page 1845, has considered all the aspects of the counter-cases and has observed as under:- "

16. In case of counter-versions arising from the same incident, one given by complainant in F.I.R. and the other given by the opposite-party case-law is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry for the reason that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of counter-versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmad 1976 SCMR 391 in cross-cases the High Court granted bail to the accused on the ground that there was probability of counter-version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted.. In the same context, reference can be made to the case of Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682."

7. In the present case also the incident took place at one and the same place and at the same time both the parties had received injuries from the hands of each other. Both the parties have suppressed the injuries caused to other party. The parties may take the plea of right of private defence, as such, the case of applicant requires further inquiry within the meaning of section 497(2), Cr.P.C., therefore, the applicant is entitled to the concession of bail'. Consequently interim bail already granted to the applicant is confirmed on the same terms and conditions. The application is allowed. H.B.T./M-234/K Bail confirmed.