2008 P Cr (PLP)

HASNAT AHMAD KHAN, J.

Petitioner seeks post-arrest bail in a cross-version recorded at the instance of Riasat Ali, during the investigation of case F.I.R. No.249, dated 21-4-2007 registered at Police Station Jalalpur Bhattian, District Hafizabad in respect of offences under sections 302, 148, 149, P.P.C.

2. Shorn of unnecessary details, the brief facts of the case are that the petitioner got the above mentioned F.I.R. registered against Muhammad Ali and six others, on the allegation of murdering Mst. Kishwar Bibi, sister-in-law (brother's wife) of the petitioner. During the investigation of the said case Riasat Ali, who is brother of afore-mentioned Mst. Kishwar Bibi, submitted an application for registration of the case against the petitioner and others. In the said application, it was alleged that the petitioner's party had a gun battle with their opponents/foes over a dispute of a piece of land. It was further alleged by the said Riasat Ali that during the trade of firing between the said parties, the petitioner shot his sister-in-law, i.e. Mst. Kishwar Bibi, dead, so as to falsely implicate his opponents, to put pressure on them and to have the possession of the disputed land. After the investigation, the prosecution's version as narrated in the F.I.R., lodged at the instance of the petitioner, was found to be false and he was challaned in the afore-mentioned cross-version.

3. In support of this petition, the learned counsel for the petitioner contends that it is a case of cross-version; that initially, the legal machinery was put into motion at the instance of the petitioner but Riasat Ali, brother of the deceased, after manoeuvring with the petitioner's foes i.e. the nominated accused of the F.I.R., falsely got a counter-version recorded; that though the version recorded in the F.I.R, was found false by the Investigating Officer, yet on a complaint, filed by the petitioner's brother, the accused named in the F.I.R. have already been summoned by the learned trial Court. Therefore, it is yet to be determined, as to which of the two versions is true; that, admittedly, Riasat Ali complainant of the cross-version did not witness the occurrence, while two alleged eye-witnesses of the cross-version do not reside in the village in which the occurrence took place, rather they belong to a far-flung area, therefore, the question, as to whether the unfortunate occurrence was witnessed by the said witnesses or not, would also be requiring further inquiry.

4. Conversely, the learned D.P.G. assisted by the learned counsel for the complainant, has opposed the bail application tooth and nail by submitting that the petitioner is specifically named in the cross-version with a specific allegation of killing an innocent woman, namely, Mst. Kishwar Bibi; that the post-mortem conducted on the dead body of Mst. Kishwar Bibi reveals that she was shot at from a very close distance, which outrightly contradicts the version given by the petitioner in the F.I.R., rather the said medical evidence corroborates the version of Riasat Ali, complainant, according to which Mst. Kishwar Bibi was shot dead by the petitioner from a very close distance.

5. After hearing the arguments put forth by both the sides, it has been straightaway observed that in this case legal machinery was put into motion at the instance of the petitioner himself. I have further gathered that there is a common feature in both the versions, i.e. F.I.R. as well as cross-version, that on a dispute of land, the petitioner's party, on the eventful day, had a gun-battle with Muhammad Ali and his seven co-accused. There is another interesting and noticeable fact that the husband of the deceased did not come forward to lodge a case against the murderer of his own wife, who was mother of his three kids. It is also an admitted fact that the occurrence had not been seen by the complainant of the cross-version. The Investigating Officer, who is present in the Court, has admitted that both the eye-witnesses, named in the cross-version do not belong to the village in which Mst. Kishwar Bibi (deceased) was murdered. It is also admitted that both the said witnesses are residents of two different villages, which are located miles away from the place of occurrence. It has not been denied by the learned counsel appearing on behalf of the complainant that on the complaint filed by the petitioner's brother, namely, Nasrullah, the accused named in the F.I.R., have been summoned, by the learned Additional Sessions Judge, Hafizabad vide order dated 28-11-2007, to face the trial.

6. Admittedly, it is a case of cross-version. The question as to which of the two versions is true would be determined by the learned trial Court after elaborate evaluation of the evidence recorded by it. Reliance in this respect is placed on the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845. Without delving deep into the merits of the case, suffice it to observe that a case of further probe into the guilt of the petitioner within the purview of section 497, Cr.P.C. has been made out, to say the least. As the case of the petitioner has been found to be one of further enquiry, therefore, he has become entitled to bail as a matter of right, which cannot be denied to him, only on the ground that the trial in the case of cross-version as well as the State case has already commenced. Reliance in this regard is placed on the cases of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585, Muhammad Saleem v. The State PLD 1989 Lah. 233, Munir v. State 2002 MLD 712 and Muhammad Umar v. The State and another PLD 2004 SC 477. 6-A. For what has been stated above, the application in hand is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one hundred thousand) with two sureties, each in the like amount to the satisfaction of the trial Court.

7. Before parting with this order it is observed that the observation made in this order would not prejudice the trial and the learned trial Court shall decide the matter on the basis of the evidence recorded by it. N.H.Q./M-7/L Bail allowed.