2017 PLP 389 (YLRN)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Imtiaz Ahmad alias Mithu, as per FIR No.125/15, dated 6.7.2015, registered for offences under sections 302, 324, 148, 149, 109/120-B, P.P.C. at Police Station Baigowala (Sialkot), on the complaint of Mst.Shafqat Begum is, that he, being armed with Kalashnikov, joined by his armed co-accused ambushed the complainant-party at about 7.45 p.m. on 5.7.2015, when they passed nearby his house after attending an Iftar-dinner, hosted by Asad Iftikhar for them at his residence; he and his co-accused fired volleys of bullets by means of their respective weapons and murdered Ibrar Hussain at the spot; the complainant-party still shifted Ibrar Hussain to Civil Hospital, Sialkot, where his death was confirmed by the medical officer; the accused murdered him on the abetment of Muhammad Arshad and others; the motive behind the occurrence pertained to previous murder cases and pitched enmity between the parties; specific attribution to the petitioner is that he raised Lalkara and fired a burst into the chest of the deceased. A cross-case was registered at 8.30 p.m. on 9.7.2015 for offences under section 302/34 P.P.C., at the instance of Muhammad Afzal, whereby he contended that he along with his brother Muhammad Ilyas and younger son Waqas alias Kashi passed through a street at about 7.50 p.m. on 5.7.2015, so as to go to the house of his daughter, where they were attacked by Atif, Amir, Usman and Saif, all armed with Kalashnikovs, who made unprovocative firing and sent his son Waqas alias Kashi reeling to the ground badly wounded; he and his companions saved themselves by taking refuge in another street; the accused fled the scene hurling abuses; they picked the injured lad and took him to Civil Hospital Daska, wherefrom he was referred to DHQ Hospital Gujranwala and then to Lahore General Hospital, Lahore, where he succumbed to the injuries at about 1.30/2.00 p.m. on 9.7.2015; the motive behind the occurrence was that his son had a quarrel with the accused a few days before.

2. After hearing the learned counsel for the parties and perusing the record, it is observed that the alleged occurrence took place in front of the petitioner's house. The investigating officer collected 122 crime empties of Kalashnikov from the place of occurrence and another nine of the same caliber from the rooftop of petitioner's mansion. He remained on physical remand for four days, but nothing was recovered at his instance in this interval. The first investigating officer declared him innocent, but the latter one held him responsible for the alleged offence and placed his name in column No.3 of the challan by opining that he intentionally kept outer gate of his house ajar and shut it after he returned to the place of occurrence. Whether or not he physically participated in the occurrence cannot be gathered even from the subsequent investigating officer's opinion, who attached weight with the recovery of nine spent bullets from his house to hold him guilty of the charge of murder of Ibrar Hussain. The visual site-plan of the Place of occurrence did not reveal that the complainant party also lived in the same street, where the alleged occurrence took place. Asad Iftikhar, who allegedly hosted an Iftar party in honour of Ibrar Hussain alias Mithu Cheeona (deceased) etc. on 5.7.2015 and on their return from whose house, the bloody clash took place between the parties, did not join the investigation to tell about the feast arranged by him, hence, presence of the complainant party being armed in front of the petitioner's house is an eyebrow-raising factor.

3. It surfaced during the course of investigation that Waqas alias Kashi accused sustained firearm injuries during the occurrence, which proved fatal, as he too died because of these injuries on 9.7.2015. His medico-legal report was issued on 5.7.2015, within three hours of the alleged occurrence. The FIR is silent about his injuries, that he sustained during the same occurrence. It is a concealment of fact on the part of the complainant, who purposely withheld that part of the occurrence, which might have been beneficial to the accused side. The cross-case got lodged by Muhammad Afzal, real father of Waqas alias Kashi (deceased) still holds the field and a separate report under section 173, Cr.P.C. has also been submitted in connection therewith before the learned trial court alongside the one, of the same kind qua the FIR case. It has to be believed a case of two versions regarding which it is difficult to tell who spoke the truth and who did it otherwise. It has been held in Shoaib Mehmood Butt's case (1996 SCMR 1845) that "in case of counter-versions arising from the same incident, one given by complainant in FIR and the other given by the opposite-party it is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under S.497(2), Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry for the reason that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of counter-versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed against." Reliance in this regard may also be had on Fazal Muhammad v. Ali Ahmad (1976 SCMR 391) and Shafiqan v. Hashim Ali and others (1972 SCMR 682). Sufficient reasons existed to believe that the petitioner's case constituted need for further probe into his guilt within the ambit of further inquiry as enshrined in section 497(2), Cr.P.C.

4. Therefore, this application is accepted and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs.5,00,000/- (five lacs) with two sureties each in the like amount to the satisfaction of the learned trial court. WA/I-7/L Bail granted.