1996 P Cr (PLP)

Brief facts of the case are that Mirza Muhammad Hussain lodged report in Police Station Pir Wadhai, District Rawalpindi. On his statement case F.I.R. No.135, dated 24‑5‑199,1 was registered in the said police station against six persons namely Abid Khan, Rashid, Majeed, Khalid, Amir Yaqoob and Temor. According to the F.I.R. the allegation against the accused is that they committed murder of Ishtiaq Hussain and injured Mirza Muhammad Hussain complainant, Muhammad Nawaz and Riaz Khan. As per contents of the F.I.R. on 24‑5‑1994 at 6‑00 p.m, Ghulam Jamil and Ghulam Hameed while they were playing Cricket with Khalid and Temor, they had fight with each other because cricket ball hit some one. Gliularn Jamil and Ghularri Hameed are related to the complainant. After short while Abid Khan, petitioner, resident of Dhok Dalai met the complainant in front of the house of Ghulam Sarwar and asked him that they should come to their Dera, so that compromise may be made between the boys regarding their fight. He further told that he wanted to do so with a view to finish the matter. The complainant told Abid Khan that they would come to their Dera within 1‑1/2 hours, for the purpose of compromise. Consequently at 8‑15 p.m. the complainant alongwith Ishtiaq Hussain alias Allah Ditta son of Ghulam Sarwar, Zulfiqar Ahmad and Ghulam Safdar, went to the Dera of Abid Khan, which is located at 4/B Sector near Nala Lai, Khayaban‑e‑Sir Syed. He further stated that at that moment when they reached near the house of Abid Khan, Abid Khan raised Lalkara that those people had come saying that "let us give them the taste of fighting and catch hold all of them". As result of that Abid Khan, Rashid, Khalid and Amir sons of Muhammad Yaqoob, Majeed and Temor came out from the Dera of Abid Khan But because of fear, the complainant and Ishtiaq Hussain turned back in the street and started running. When they reached near the house of Malik Ashiq Hasain, Temor caught hold lshtiaq Hussain while chasing him and Rashid gave Chhuri blow on the left side of chest of Ishtiaq Hussain. He fell down Second blow was given by Abid Khan, while he was lying on the ground which hit him on .the left flank. Thereafter Khalid gave two Chhuri blows one after the other on his abdomen. Majeed also gave two. Chhuri blows one after the other on the head. Amir gave Chhuri blow on the abdomen of the complainant. Both father and son got seriously injured. The occurrence was witnessed by Ghulam Sarwar and Ghulam Safdar. After that Abid Khan and others while raising Lalkara went towards the house of Ghulaw Sarwar and started firing in the street. The ladies of the houses located nearby started throwing bricks, which caused injuries to Muhammad Nawaz, and Riaz Khan. Ishtiaq Hussain died due to the injuries. On this the aforesaid case was registered. During investigation all the accused were found guilty and arrested in this case. Amir Yaqoob and Temor were granted bail by this Court. The allegation against Temor, to his extent, was that he caught hold the deceased while he was running and against Amir Yaqoob, he participated in the occurrence. No other allegation was levelled against them. Now all the remaining accused namely Rashid Khan, Khalid Mahmood Khan and Abid Tanveer Khan have applied for bail.

2. Learned counsel for the petitioners seeks bat: on the grounds that during investigation cross‑version was reported to the police, which was recorded vide Rapt No.36, dated 2‑6‑1994, against the complainant party. The cross‑version was not given due importance and was rejected at the outset. Thereafter, they have filed a private complaint which was sent for inquiry under section 202, Cr.P.C. Inquiry report was in favour of the petitioners' party. On receipt of the inquiry report the matter went to the learned Sessions Judge. After perusal of the inquiry report and the evidence brought by the complainant in support of the private complaint, learned Sessions Judge summoned the, accused.

3. Learned counsel further contends that now there are two versions, one from the petitioners' side and the other from the complainant side. The opinion for the complainant is of the police officials and in the private complaint there is opinion from the two Judicial Officers. He also maintains that the complainant party has not mentioned true facts regarding the injuries of two accused, namely Abid and Majeed. He relied upon certain judgments for grant of bail:‑‑ (a) 1981 PCr.LJ 704 (b) 1978 SCMR 195, (c) 1995 PCr.LJ 144, (d)1995 PCr.LJ 933, (e) 1978 SCMR

195. Lastly he give stress for the grant of bail merely on the ground of cross‑version, regarding which there is sufficient material on record. He is of the view that other side is aggressive, they came to the place of occurrence. Admittedly injuries were caused to the accused party.

4. On the other hand, learned State Counsel with the Assistance of learned counsel for the complainant vehemently opposed the bail petition on the grounds that cross‑vergion was rejected and inquired into thoroughly during the investigation and was not accepted by the investigating agency. Admittedly, they filed a private complaint, which was sent for inquiry under section 202, Cr.P.C. and after the receipt of the inquiry report, the learned Sessions Judge had summoned the accused. But the inquiry under section 202, Cr.P.C. is conducted unilaterally and the accused are not associated. In spite of summoning of the trial Court to face trial in the private complaint, does not mean‑ that there are reasonable grounds that the accused of the cross‑case were not connected with the alleged crime and are entitled to bail. At this stage, it cannot be said that it has created some dents in the prosecution case. Especially in the circumstances when there is some explanation already mentioned in the F.I.R. regarding the injuries suffered by the accused in the incident. He relied upon these judgments:‑‑ (a) 1980 SCMR 203, (b) PLD 1989 SC 585, (c) 1983 PCr.LJ 292, (d) 1975 SCMR 391

5. I have heard the arguments of the learned counsel for the parties and gone through the record, also Rapt No.36, dated 2‑6‑1994 including medico legal reports. As far as the petitioners are concerned, as per contents of the F.I.R. they are attributed sharp‑edged injuries to the deceased. They participated in the alleged crime, while they were armed with Chhuries, which they effectively used. Regarding place of occurrence it is mentioned in the F.I.R. that the deceased party was going to the Derg of Abid Khan accused (or the purpose of compromise, with regard to the matter‑motive. Thus, the deceased party came to the place of occurrence allegedly with empty handed and not committed any offence. Hence it cannot be said that they are aggressor even if there are some injuries on the person of one or two accused. The important fact of this case is that injuries on the person of the accused have been explained in the F.I.R. by the complainant. Medico‑legal reports of the accused do show and make it possible to believe that the injuries were caused by the bricks batting because of their dimension and site. As far as the contention of cross‑version is concerned, I do agree that Rapt was recorded on 2‑6‑1994 and later on a private complaint was also filed on which accused were summoned by the learned Sessions Judge. Sending private complaint for inquiry under section 202, Cr.P.C. entailing unilateral proceedings and after the receipt of the report summoning of accused by the Sessions Court cannot be considered at par with the requirements of law to believe that there were reasonable grounds that the accused were connected with the alleged crime. Inquiry under section 202, Cr.P.C. and later on summoning on that material tantamounts only to call upon the accused to face trial whether that may end on conviction or acquittal. Apparently it does not create any doubt in the prosecution case. However, it is within the competency of the Court to see as to whether the attending circumstances do make out a cause of self‑defence or not. Here in this case, keeping in view, the role played by the petitioners/accused, they are not entitled to the concession of bail. There is sufficient material on record, at this stage, to show that there are reasonable grounds to believe that the accused have committed the alleged‑crime. However, the version put forward by the accused/petitioners is not to be rejected in toto. Scrutiny of the prosecution and defence evidence is needed to arrive at some definite conclusion. The attending circumstances are such that I have no hesitation to say that plea of defence taken by the accused/petitioners coupled with the F.I.R. etc. regarding the injuries on the persons of the accused is a factor having no pursuasive pull for grant, of bail. I, therefore, reject the bail petition and the same is dismissed. N.H.Q./R‑206/L Bail refused.