2001 P Cr (PLP)

4. Later on, on 25-8-2000 an application for recording cross-version was submitted by Syed Naeem Abbas petitioner to the S.H.O. concerned alongwith the medical certificate of Sajjad Hussain and Tauqeer Abbas wherein it was stated that on 22-8-1999 at 8-30 a.m. Naeem Abbas alongwith 'Tanvir Hussain and Muqadas were returning to their house when Mubashar Hussain (present respondent) armed with iron pipe, Muqadas Shah armed with Danda, Mudasar Shah armed with iron pipe, Muhammad Din armed ,with iron pipe and two unknown persons were standing in front of the door ,of their Haveli. Mubashar Shah accused (respondent) asked his companions to lift Tauqir Abbas and lock him in a room and then to kill him on which Muqadas Shah etc. lifted Tauqir Abbas, locked him in the room of the Haveli. Mubashar Hussain caused a blow with iron pipe on the person of Tauqir Abbas which hit on his left arm, Muqadas Shah accused gave a Danda blow which hit on the right elbow of Tauqir Abbas. Mudasar Shah caused blow with iron pipe on the knee of Muqadas Shah. Muhammad Din also inflicted an injury with iron pipe which hit on the knee of Tauqir Abbas. On the noise raised by Tauqir Abbas, Sajjad Hussain (now deceased) and Muqadas Shah son of Sajjad Hussain also came there and requested Mubashar Hussain Shah etc. not to give beating to Tauqir Abbas on which Mubashar Shah gave a blow with his iron pipe on the head of Saiiad Hussain who fell down. Muqadas gave a Danda blow which also hit on the neck of Sajjad Hussain. Many people attracted to the spot hearing the noise. Seeing them the accused ran away. The complainant of this cross-version took the injured to Shahkot Rural Health Center. Doctor admitted both the injured persons and then gave the medical report to Naeem Shah.

5. Motive behind the present case is civil litigation pending between the parties. Accused person in the cross-version had been trying to compromise the matter but it did not see the light of the day. Hence present cross-version.

6. Learned counsel for the petitioner in support of this petition submits that Mudasar Hussain Shah who had caused injury to Tauqir Abbas applied for bail before arrest which was dismissed on 11-11-1999 by Syed Nazar Hussain Shah, Additional Sessions Judge. Thereafter, Mudasar Hussain, Mubashar Hussain and Muqadas Hussain Shah applied for bail after arrest. As Muqadas Shah was found to be innocent and his name was placed in column No.2 of the challan, he was allowed bail by the learned Additional Sessions Judge on 12-2-2000 while the application of Mudasar and Mubashar Shah was dismissed. Learned counsel for the petitioner at this stage also pointed out the relevant portion of the order of the learned Additional Sessions Judge in which he had given reason for dismissal of bail application. of Mudasar and Mubashar. Thereafter, on the legal opinion of District Attorney, Sheikhupura, the offence was converted from sections 302, P.P.C. to 322, P.P.C. Mudasar Shah and Mubashar Shah applied for bail after arrest before Ilaqa Magistrate in a case under section 322, P.P.C., who vide his order, dated 29-5-2000 dismissed the same then present respondent applied for bail after arrest before the same learned Additional Sessions Judge who granted the bail on the ground that now offence has been converted from section 302, P.P.C. to section 322, P.P.C. and the punishment in this offence is only Diyat. The order of said learned Additional Sessions Judge has been challenged before this Court. Learned counsel for the petitioner submits that the delay in lodging the F.I.R. has been fully explained and specific injury, according to the F.I.R., has been. attributed to the present respondents. He further submits that even Sajjad Hussain had made a statement when he was alive on 2-9-1999 in which he had implicated the present respondents. Adds that opinion of the District Attorney is based on mala fide and with ulterior motive. He submits that after giving strong observations against respondent while dismissing his bail on 12-2-2000 no fresh ground had arisen on which the learned Additional Sessions Judge had granted bail to respondent. He further submits that case against the respondent is covered by the prohibitory clause of section 497(1), Cr.P.C.

7. On the other hand learned counsels for the respondent submit that .initially it was the respondent who was complainant in the F.I.R. lodged against the deceased and others, that the opinion of the District Attorney is based on sound material, that the learned Additional Sessions Judge was right in granting bail to the respondent as, the offence did not fall within the prohibitory clause of section 497(1), Cr.P.C. Adds that Sajjad Hussain in his statement recorded under section 161, Cr.P.C. on 2-9-1999 did not attribute specific injury to present respondent. They further submit that opinion of the learned District Attorney has not been challenged before any Court. They submit that offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. They both defend the order of the learned Additional Sessions Judge who has granted bail to the respondents. Mr. Muhammad Taqi Khan, Advocate also relies upon 1980 SCMR 784, NLR 1982 Crl. Cases 693 and 1986 PCr.LJ

90. Learned counsel further submits that challan in a case under section 322, P.P.C. is lying with the Ilaqa Magistrate and case is fixed for framing of charge.

8. I have heard the learned counsel for the parties at a great length and I myself have also gone through the case diaries and the investigations conducted by different Police Officers starting from the S.-I. upto the rank of S.S.P., Sheikhupura. In the instant case, according to the F.I.R, specific injury was attributed to the present respondent, recovery was effected from him, delay in lodging the F.I.R. was explained.

9. Now I would like to refer the judgment of the learned Additional Sessions Judge, Sheikhupura, dated 6-10-1999 through which he had dismissed the application of the present respondent and his co-accused Mudasar Hussain:-- "Petitioners have been specifically named in the cross-version and specific roles have been attributed to them. Statement of Sajjad Hussain Shah deceased, dated 2-9-1999 is also available on the record in which he has specifically named the petitioners with specific role. The police has also found the petitioners as guilty." Learned Additional Sessions Judge vide his order, dated 6-10-1999 dismissed the same, then the respondent applied for bail again alongwith his two brothers namely Mudasar Hussain and Muqadas Hussain. As far as Mudasar Hussain was concerned, he was found innocent and his name was placed in column No.2 of the challan prepared trader section 173, Cr.P.C., so he was allowed bail while dismissing the bail application of Mudasar Hussain and Mobashar Hussain learned Additional Sessions Judge vide his order, dated 12-2-2000 has given the following observation:-- "So far as the case of Mudassar Hussain and Mobashar Hussain petitioners is concerned they were present at the place of occurrence specific role has been attributed to them. Moreover, both the petitioners have been found guilty, so bail to their extent stands dismissed. " Now the impugned order passed by the learned Additional Sessions Judge, dated 13-6-2000 was mainly passed on the opinion of the District Attorney, Sheikhupura and D.S.P. Sangla Hill. I am unable to understand that how the District Attorney commented on the aspect of the case that ii was not a case where the intention of the respondent was not to kill the A deceased and according to him the case of the present respondent falls under section 322, P.P.C. For the just decision of this cancellation application, I would like to refer section 321, P.P.C. which is about Qatl-bis-Sabab alongwith its illustration:-- "

321. Qatl-bis-Sabab.

Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for death of another person, is said to commit Qatl bis-Sabab. Illustration. A unlawfully digs a pit in the thoroughfare but without any intention to cause death of, or harm to, any person. B while passing from there falls in it and is killed. A has committed Qatl bis-Sabab. " It has got no relevancy with the facts of this case and is totally devoid of force. Learned District Attorney, in my view, with ulterior motive has given finding in favour of the respondent. It may also be mentione6 here that in the earlier investigation conducted by Inspector Police the F.I.R. which was lodged by the respondent was found to be false. Initially the Investigating Officer found the respondent guilty and challan under section 302, P.P.C. vide Zimni No.31 was prepared, recovery was also effected from the respondent but later on Ghulam Qasim, D.S.P., C.I.A. Staff, Sheikhupura vide his Zimni No.38, when he was investigating the case came to the conclusion and found the present respondent innocent. Thereafter, investigation of the instant case was entrusted to the S.S.P. by the D.I.-G., Lahore on 20-12-1999, who after hearing the parties came to the conclusion that the respondent is guilty in this case of offence under section 302, P.P.C. vide his Zimni No.41, dated 3-1-2000. District Attorney, Sheikhupura had given his opinion three months after the finding of S.S.P., Sheikhupura, who is a very Senior Officer. After going through the record and hearing the parties at a very great length and also going through the report of District Attorney, Sheikhupura, I am of the considered opinion that it is not a case under section 322, P.P.C. but under section 302, P.P.C. No circumstances were changed when the bail was allowed later on by the learned Additional B Sessions Judge, Sheikhupura and when he earlier dismissed the same. In this view of the matter; this petition is accepted and the bail already granted to respondent is hereby recalled. Q.M.H./M.A.K./N-43/L Bail cancelled.