2012 PLP 306 (MLD)

CH. IFTIKHAR HUSSAIN, J.

Petitioner Muhammad Shahzad alias Babu by way of the instant petition has prayed for post arrest bail in case F.I.R. No.288 originally registered under section 324 read with section 34, P.P.C. with Police Station Saddar Kamalia, District Toba Tek Singh on 30-7-2010. Later on, the police is stated to have added the offence under sections 337-A(i)/337-F(v)/337-F(vi)/337-L(ii) P.P.C. in the same.

2. Briefly the prosecution case as per the F.I.R. is that on 30-7-2010 at about 5-30 p.m. Shahzad alias Babu (petitioner) armed with .12-bore gun, Sheraz with Sota, Ghulam Ahmed with .12-bore gun and Nasrullah with Sota, in furtherance of their common intention, have attempted the qatl-e-amd of Muhammad Umer, the son of the complainant and others namely Nadeem, Muhammad Mushtaq and Muhammad Munir.

3. The learned counsel for the petitioner has contended that the petitioner has falsely been roped in; that there is cross - version of the alleged incident and from his side two persons namely Ghulam Ahmad and Nasarullah have sustained injuries during the same and their injuries but have been suppressed by the complainant in the F.I.R. with dishonest intention; that in such circumstances, it is yet to be seen that which of the parties has initiated the aggression and who was aggressed upon and such question alone renders the case against him as one of further inquiry into his guilt; that his side has brought private complaint regarding the alleged incident in which the accused, who are the men of the complainant party have been summoned and the complainant's side has also brought the private complaint regarding the alleged incident and this will also be determined at some subsequent stage that which of these two complainants is to be tried first and which later on; and that he is behind the bars since 24-11-2010 and a previous non-convict and so, he is entitled to the relief prayed for.

4. As against the same, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has opposed the petition on the ground that he (petitioner) is named in the F.I.R.; that he has been assigned specific role of firing at Muhammad Umer, the son of the complainant, hitting on his left shoulder, arm and flank and the complainant's side has also brought a private complaint in respect of that occurrence. The learned counsel for the complainant has admitted that the petitioner's side has brought cross version before the police as well as by way of complaint before the court concerned and in which the accused, who belong to the complainant's side have been summoned including the complainant himself. He, however, has placed reliance upon the case of "Muahmmad Rafique v. The State (2008 SCMR 678) and "Muhammad Ali v The State" (2003 SCMR 1697)

5. I have carefully considered the submissions made from both the sides and the record perused

6. There is no denying the fact that it is a case of two versions. One version from the complainant of the case in the form of the narration in the F.I.R. and the other from the petitioner's side before the police as well as by way of the private complaint from Nisar Shah of his side against Naseer and others including the complainant and the injured persons It is everybody's case before me that that the accused in such complaint have been summoned by the court concerned. According to the learned counsel for the petitioner, two men from the petitioner's side namely Nasarullah and Ghulam Mustafa have sustained injuries during the alleged incident and their injuries but have not been explained in the F.I.R. This so, is evident from the bare reading of the F.I.R., as there is no mention of the injuries of these persons from the side of the petitioner.

7. Anyway, the fact remains that there is a cross version from the side of the petitioner. Hence, the question that which of the parties has initiated aggression and who was aggressed upon is of utmost importance. This definitely is to be determined at trial after recording of the evidence. Hence, the case of the petitioner is amply covered by sub-section (2) of section 497, Cr.P.C. calling for further inquiry into his guilt.

8. He is stated to be behind the bars since 24-11-2010. He is also stated to be a previous non-convict, which has not been controverted by the other side.

9. As regards, the case-law cited by the side of the complainant, with all respect to the same, I am of the considered view that it is not at all aptly applicable to the facts of the case of the petitioner as those have proceeded entirely on different facts and circumstances.

10. In these circumstances of the case, I find that the case for his enlargement on bail has been made out.

11. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac only) with two sureties each in the like amount to the satisfaction of the learned trial court. N.H.Q./M-212/L Bail allowed.