2011 PLP 1260 (MLD)

MANZOOR AHMAD MALIK, J.

Petitioner Muhammad Usman Safdar seeks post arrest bail in case F.I.R. No.68 of 2010, dated 27-6-2010, under sections 302, 324, 148/149, 337-A2, P.P.C., Police Station Noshera, District Khushab. The allegation against the petitioner is that during the course of occurrence, he caused an injury on the person of an injured P.W.

2. Learned counsel for the petitioner, in support of this bail petition, contends that the petitioner has falsely been involved in this case on account of mala fide of the complainant and the local police; that as per contents of the F.I.R., the petitioner is not responsible for causing any injury on the person of the deceased and the only allegation against him is that he caused a firearm injury to Muhammad Usman injured P.W.; that three persons from the petitioner's side, namely, Mazharul Haq, Muhammad Usman and Muhammad Asif, were also injured amongst whom Mazharul Haq received four injuries with firearm while remaining two with blunt weapons; that a cross-version was lodged against the complainant party on the statement of Zafar Iqbal, a relative of the petitioner; that although the police recommended for its cancellation but the learned Magistrate did not agree with the said recommendations and thereafter challan was submitted by the police against the accused persons of the cross-version case who have been summoned by the learned trial Court; that six co-accused of the petitioners have already been allowed bail after arrest by this Court and that, in the afore-referred circumstances, petitioner is also entitled to the concession of bail on the principle of consistency.

3. The learned D.P.-G. assisted by the learned counsel for the complainant contends that the petitioner is named in the F.I.R. with a specific role; that cross version of the petitioner's side was found false and the same was recommended for its cancellation, so, the petitioner is not entitled to the concession of bail after arrest. Complainant's learned counsel adds that Usman injured from the complainant's side, is still in the hospital and has not been able to recover although he has been operated upon many a times and that the role of the petitioner is distinguishable from his co-accused who have already been allowed bail by this Court. The police officer present in Court states that the report of the police for cancellation of cross version was not agreed to by the learned Magistrate and thereafter the police has submitted challan both in the State case registered on the statement of the complainant and in the cross version case lodged on the statement of Zafar Iqbal, from the petitioner's side.

4. Arguments heard. Record perused.

5. In the F.I.R., there is no mention of the injuries sustained by the petitioner's side although three persons, namely, Mazharul Haq, Muhammad Usman and Muhammad Asif, were also injured who were medically examined on the same day i.e. on 27-6-2010 and whose MLRs are available on the file as Annexures-G to G

2. I have noted from the MLR (Annex-G) of Mazharul Haq, qua existence of four firearm injuries on his person. Although, the police, during the course of investigation, recommended for cancellation of the cross version case lodged against the complainant party from the petitioner's side but the learned Magistrate did not agree with the same and, as per the police officer present in Court with record, challan in both the cases i.e. the State case got registered by the complainant and the cross version case lodged against the complainant party on the complaint of one Zafar Iqbal, of petitioner's side, has been submitted in Court. Admittedly, it is a case of two versions one set up by the complainant in the F.I.R. and the other in given in the cross version lodged by Zafar Iqbal of the petitioner's side. It is yet to be seen by the learned trial Court as to which party was the aggressor and who was aggressed upon. I have also gone through the bail granting orders of this Court. Vide order dated 10-11-2011 passed in Criminal Miscellaneous No.12394-B of 2010, bail after arrest was allowed to two co-accused of the petitioner, namely, Nazar Muhammad and Umar Farooq. Amir Shahzad and Nawab Khan were allowed bail after arrest in Criminal Miscellaneous No.13472-B of 2010 on 10-12-2010 while vide order dated 30-12-2010 passed in Criminal Miscellaneous No.14279-B of 2010, similar relief was extended to Abid Hussain and Muhammad Asif. Therefore, the principle of consistency is also attracted in this case. As far as submission of challan in the Court is concerned, it is settled law that although the challan has been submitted in the Court and the case is fixed for hearing but still if, prima facie, the case of the petitioner appears to be one of "further inquiry" and is covered under the provisions of section 497 Cr.P.C., then it becomes a right of an accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse such a right. In this regard guidance is sought from a latest pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as ABID ALI alias ALI v. THE STATE (2011 SCMR 161), wherein, at page 165, the learned Apex Court has been pleased to observe as under:-- "Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. See Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585)".

6. In the afore-referred circumstances of the case, this Court is of the prima facie view, that the petitioner has made out a case of further inquiry falling within the ambit of subsection (2) of section 497, Cr.P.C., hence, after having sought guidance from the principle settled by the Hon'ble Apex Court of the country in Abid Ali's case (supra), this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial Court. However, it is made clear that the above observations are only tentative in nature and relevant only for the purpose of this bail petition, therefore, shall not influence the learned trial Court during the trial. Before parting with the order, it is also observed that if any delay is caused by the petitioner in conclusion of the trial, the complainant/State shall be at liberty to file a petition for cancellation of bail of the petitioner. N.H.Q./M-192/L Bail allowed.