2008 PLP 2098 (YLR)

KHURSHID ANWAR BHINDER, J.

Nazir Ahmad petitioner in Crl. Misc. No.3187-B/2008 seeks post-arrest bail in case F.I.R. No.1139 dated 25-10-2007, registered under sections 337 A(i)/337-A(iii)/337-L(ii)/337-F(v), P.P.C. at Police Station Factory Area, Sheikhupura whereas Aslam Ali petitioner in Crl. Misc No.4030-CB/2008 seeks cancellation of bail granted to Bashir Ahmad respondent No.1 by the learned Additional Sessions Judge, Ferozewala vide order darted 3-3-2008. Both these petitions are being disposed of through this single order as both of them arise out of the same F.I.R.

2. Precise allegations against Nazir Ahmad petitioner are that he along with his accomplices had launched attack on one Zulfiqar brother of the complainant and had injured him.

3. Learned counsel for the petitioner submits that the complainant of this case is not the eye-witness of the occurrence. There is delay of four days in lodging the F.I.R., therefore, possibility of deliberations cannot be ruled out. Only one injury is attributed to the petitioner by which nasal bone of Zulfiqar was fractured. He further submits that the petitioner was also injured in the said occurrence and he also got the cross version recorded which was subsequently cancelled without any plausible reason. He also submits that in a case of cross version it is to be seen at the time of trial as to which was the aggressor party and in this context he relies on Mst. Shafiqan v. Hashim Ali and another 1972 SCMR 682, Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and Sardar Munir Ahmed Dogar v. The State PLD 2004 Supreme Court

822. He further submits that under the circumstances petitioner's case does not fall within the prohibitory clause of section 497, Cr.P.C.

4. Learned counsel for the complainant while opposing the bail application submits that the petitioner is nominated in the F.I.R. with a specific role and had caused fracture of nasal bone of Zulfiqar, brother of the complainant and the offences fall within the prohibitory clause of section 497, Cr.P.C. He further submits that fracture of nasal bone cannot be a self inflicted injury. Cross version got recorded by the petitioner was cancelled. Challan has already been submitted in the trial Court and the charge has been framed, therefore, the petitioner is not entitled to the concession of bail at this stage.

5. Learned D.P.-G. also opposes the bail application and submits that there is a delay of four days in lodging the F.I.R. However, he asserts that the petitioner was armed with .7-MM rifle as per the narration of the F.I.R. but Sota was recovered from him. He has been held guilty in the police investigation. No plausible reasons were given by the Investigating Officer by cancelling the cross version of the petitioner. He lastly submits that the petitioner's arm was also fractured in the said occurrence.

6. I have heard the learned counsel for the parities and have also perused the record. It appears from the perusal of the record that it is a case of cross-fight in which both the parties suffered injures and the cross-version of the petitioner was also recorded as the petitioner also suffered fracture on his arm. In such like cases it is to be seen at the time of trial as to which party was the aggressor and only tentative assessment is to be made at the bail stage. Moreover, there are certain discrepancies in the instant case which proves the fact that the petitioner has been falsely implicated in the case for the reason that as per narration of the F.I.R. .7-MM rifle was used by him but police has recovered Sota from him which makes the case highly doubtful. Police has not been able to give any plausible reasons for cancelling the cross-version of the petitioner. Moreover, the cross version has some substance as it is also established from the record that the petitioner also suffered fracture on his arm.

7. Under the circumstances, the case of the petitioner is that of further inquiry into his guilt. I, therefore allow Crl. Misc. No.3187-B/2008 and admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount each to the satisfaction of the learned trial Court.

8. Since Nazir Ahmad co-accused of Bashir Ahmad, respondent No.1 in Crl. Misc No.4030-CB/2008 has been granted bail for the reasons stated above, therefore, I am not inclined to cancel the bail granted to Bashir Ahmad by the learned Additional Sessions Judge, Ferozewala vide order dated 3-3-2008 for the reason that the sentence of the offence against Bashir Ahmad is upto five years, as such, the prohibition contained in section 497 (1), Cr.P.C. is not attracted and the learned Additional Sessions Judge has rightly granted him bail by exercising his discretion which cannot be interfered with by this Court under the circumstances narrated above, as such, Crl. Misc. No.4030-CB/2008 is hereby dismissed. NHQ/N-23/L Order accordingly.