2010 PLP 850 (MLD)

MUHAMMAD ALI MAZHAR, J.

By this Criminal Bail Application, the applicants M. Usman and Javed Khan seek bail in Crime No.260 of 2007, registered under sections 302, 147, 148, 149, 504 and 337-H(ii), P.P.C. Facts of the prosecution case, in brief, are that on 10-12-2007 at 0715 hours, complainant M. Saleem lodged his F.I.R. at Police Station Town Mirpurkhas with regard to the offence took place on 10-12-2007 at 0540 hours. As per F.I.R., it has been stated that on the aforementioned date and time, the complainant along with his brother Faiz Muhammad Pathan and cousin Juma Khan reached at post office chowk on motorcycle as they wanted to go to Karachi. In the meantime, Munawar Din Solangi and Muhammad Rafique Pathan' also reached there. They saw that one coach was standing there. They also saw that Attar Khan Rajput having a repeater in his hand, Muhammad Usman alias Lalyo, Raees alias Khadu, Jawed Rajput and Liquat alias Miskeen, all armed with pistols and two unknown persons having klashnikovs in their hands were forcibly getting down the passengers from the aforesaid coach and exchanging hot words. Faiz Muhammad Pathan and Muhammad Rafique Pathan asked them not to quarrel with the passengers, on which, accused party made straight fires upon them with their respective weapons. As a result of which, Muhammad Rafique, Faiz Muhammad sustained fire arm injuries and fell down. Thereafter all the accused persons while making aerial firing fled away. The complainant party took the injured to civil hospital Mirpurkhas, where both the injured succumbed to their injuries. In support of the bail application, the learned counsel for the applicant has argued that the story narrated in the F.I.R. is false and there are counter versions between the parties for the one and the same incident, one F.I.R. No. 260/2007 was got registered by the complainant party and the second one being F.I.R. No.259 of 2009 was got registered by the father of the applicant, accused No.2. Learned counsel further argued that in the Crime No.259 of 2007, the same trial Court confirmed the bail of Muhammad Faisal and co-accused Abdul Majeed but this treatment was not given to the applicant in the crime No.260 of 2007. He further argued that from the contents of F.I.R., the role of present applicants is quite untrustworthy and shaky which requires detailed probe and inquiry, therefore, the applicants are lawfully entitled to the concession of bail. The main thrust of arguments of the learned counsel for the applicants is that this is a case of counter versions and further inquiry is necessary to ascertain the guilt of the present applicants. In support of his contentions, he relied upon 1996 SCMR 1845. In this judgment, the Hon'ble Supreme Court has held that in case of counter version arising from the same incident, one given by the complainant in F.I.R. and the other given by the opposite party, the contentions raising questions as to which version in the two F.I.Rs. is correct and which party is aggressor and which party is aggressed against can be gone into and decided by the trial Court until after elaborate evaluation of the evidence recorded by it and not at the bail stage. If the contents of the F.I.R. No.260 of 2007 are looked into in which the bail has been applied it would be seen that it was lodged by one Muhammad Saleem in which specific allegations have been levelled against the present applicants, while in another F.I.R. No.259 of 2007 lodged by one Athar Khan, it has been stated that Faiz Muhammad Pathan, Muhammad Rafiq Pathan misbehaved with the son of the complainant Rais alias Gudu and abused him and both of them took out pistols from their folds; the complainant's deceased son Rais also took out his pistol in his defence, however in the meanwhile companions of both the said persons namely Yaqoob Baloeh, Mujeeb Pathan and Faisal by giving Hakals asked their both the companions that they should keep aside and they will kill Rais alias Gudu; on their saying Faiz Muhammad Pathan and Muhammad Rafique went aside, suddenly three persons made straight fires upon Rais alias Gudu, which also hit Faiz Muhammad Pathan and Muhammad Rafique and all the three persons after sustaining fire shot fell down. In this case, though in one and same incident Faiz Muhammad, M. Rafiq and another person Rais alias Gudu were killed but on the face of it, both the crime numbers are not looking counter versions. In the Crime No. 260 of 2007, two eye-witnesses Munawar Deen and Jumma Khan Pathan in their 161, Cr.P.C. statement fully supported the version of complainant and implicated the applicants. Postmortem report further confirms the fire-arm injury and the medical report is also supporting to the case of the prosecution while in F.I.R. No. 259 of 2007 allegations are against Yaqoob Baloch, Mujeeb Pathan and Faisal who allegedly killed Rais alias Gudu. Learned APG opposed the bail application and argued that there may be one incident but both F.I.Rs. cannot be treated as counter versions against each other in which the complainants and accused are different. He further argued that even in the case of counter version, it is not necessary that on the basis of mere counter version, the bail should be granted to the accused persons. In support of his contention, he relied upon the judgment of the Hon'ble Supreme Court reported in 2005 SCMR 1402 in which it has been held that tentative assessment is permissible at bail stage and mere existence of cross-case cannot be a ground for grant of bail and that bail to all the parties cannot be granted simply because of the existence of cross versions and without making tentative assessment of given circumstances; further the courts cannot be made bound to consider every cross-case a case of further inquiry and thus grant bail to all the persons involved. If the courts are made bound to consider every cross-case a case of further inquiry and thus to grant bail to all the persons involved, it would lead to various anomalous and complicated situation. Every accused in murder cases would come forward with a frivolous cross version in order to make it a case of further inquiry and to get released on bail. In this case the learned High Court of Peshawar declined bail to the applicant which order was affirmed by the Hon'ble Supreme Court. In addition to the above, the learned APG further relied upon 1992 SCMR

501. In this case also, the Hon'ble Supreme Court has considered the aspect of counter version between two parties and it has been held that specific role had been assigned to the accused persons for causing death of two persons, prima facie opinion on merits in favour of the accused persons being not possible, question of further inquiry would not arise merely because there were cross F.I.Rs. or cross cases registered by the parties against each other and it could not be a ground for grant of bail in the circumstances. So it is clear from the aforesaid judgment of the Supreme Court that mere counter version is no ground for the grant of bail and mere registration of two F.I.Rs. even between the same parties sometimes cannot make out a case of further inquiry. The learned counsel for the .applicants relied upon the bail confirmation order of accused Muhammad Faisal and Abdul Majeed in Crime No.259/2007. It is clear from the bail confirmation order passed by the learned Ist Additional Sessions Judge, Mirpurkhas in Bail Applications Nos. 57 and 11 of 2008 that in both cases, the complainant conceded his no objection to the grant of bail therefore the interim bail of the aforesaid accused persons was confirmed by the learned 1st Additional Sessions Judge, Mirpurkhas. The advocate for the complainant also relied upon same judgments and adopted the arguments of learned APG. However he has further argued that F.I.Rs. Nos.259 and 260 of 2007 cannot be treated as counter versions as both are different. In Crime No.260 of 2007, the eye-witnesses have clearly supported the version of the complainant and specific role has been assigned to the applicants, therefore, they are not entitled to the concession. He also referred to the judgment of Hon'ble Supreme Court in 2004 SCMR 1018 in which it was held that besides the F.I.R., eye-witnesses in their statements under section 161, Cr.P.C. had implicated the accused and deeper appreciation of the prosecution case was not ordinarily be undertaken. High Court refused bail and Supreme Court maintained the order and refused leave to appeal. The Hon'ble Supreme Court has clearly held that eye-witnesses implicated the accused as a principle accused of offence, therefore the bail was rightly declined. In the F.I.R. specific role has been assigned to the present applicants therefore they are not entitled to the concession of bail. The judgment relied upon by the learned counsel for the applicants 1996 SCMR 1845 is highly distinguishable as regards to the counter versions, however besides the aspect of counter version, the judgment also provided a guideline for granting bail in which it has been held that the Court while deciding bail applications, could resort to tentative sifting of evidence as distinguished from elaborate sifting of evidence. To determine the question whether bail was to be granted or not, the Court was bound to make tentative assessment of the material placed before it. The Court however had to refrain, directly or indirectly, from giving any conclusive finding on the question of guilt or innocence of the accused. Question of further inquiry should be such which should have nexus with the result of case and may show or tend to show that the accused is not guilty of the offence with which he is charged. Now what would constitute as sufficient grounds for further inquiry would depend on the peculiar facts of each case and no hard and fast rule can be laid down for that purpose. However, hypothetical question which can be imagined would not make it case of further inquiry simply for the reasons that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further inquiry into the guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with which he is charged. In the present case, the material placed before the Court is not only the F.I.R. but also the statements of two eye-witnesses Munawar Deen and Jumma Khan including the postmortem and medical report fully supporting the prosecution version. Another judgment cited by the learned counsel for the applicants 2009 SCMR 324 is also not helpful as in this case though two F.I.Rs. were lodged by the accused himself and the other by cousin of deceased in respect of the same incident containing the version of the complainant party, however in that case it was held by the Hon'ble Supreme Court that by reading counter version in juxtaposition with each other, the existence of the quarrel over money leading to raising the tempers and use of fire-arms by both the parties appear to be acknowledged. But in this case the applicants have failed to point out any enmity or dispute on any issue as mentioned in the reported judgment, therefore the above judgment is distinguishable. In the judgment reported in PLD 1994 SC 65, it has been held that armed assailants attacked unarmed victim, omission to pinpoint in F.I.R. as to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far conviction on the basis of charge under section 302 but in this case not only the eye-witnesses fully identified the accused and supported the version of the complainant and also specific role has been assigned to them in the F.I.R., therefore, neither this case can be treated a case of counter version nor it at this stage it can be held as case of c further inquiry. For the foregoing reasons, the applicants are not entitled to the concession of bail, consequently, the bail application is dismissed, however, the trial Court is directed to conclude the trial within a period of three months. H.B.T./M-60/K Bail refused.