2012 PLP 273 (YLR)

MUHAMMAD ALI MAZHAR, J.

The applicant has applied for bail in Crime No.166 of 2010 lodged at Police Station, Khanpur under sections 302, 324, 148, 149, 395, 397, 384, 511, 337H/2, P.P.C. and sections 6 and 7 of Anti-Terrorism Act.

1. The complainant Ghulam Sarwar lodged the F.I.R. on 28-11-2010, in which it was alleged that there was a fight of cocks where the complainant along with his brother Jan Sher, his uncle Khurasan, cousin Riaz and two relatives had gone to see. At about 12 noon, the applicant along with 13 persons named in the F.I.R. and two unknown persons came there and accused Gulsher raised Hakals and said that today they will recover Bhata, on which the brother of the complainant Jan Sher, his uncle Khurasan and cousin Riaz forbade them. Accused Gulsher, Gul Muhammad and Khan Jan directly fired from their Kalashnikovs upon the complainant's brother Jan Sher, who in his defence from his licensed Repeater fired at accused Gulsher. Accused Nazar Khan, Amanullah and Mour made firing from their Kalashnikovs at the complainant's uncle Khurasan, on which his uncle in his defence also fired from his TT Pistol at accused Gul Muhammad. Accused Lateef, Nazar and Gul Muhammad also fired upon complainant's cousin Riaz with their weapons. Thereafter the complainant informed that Jan Sher has received injuries on right side of stomach and his uncle Khurasan has received fire arm injuries on his neck from backside and they succumbed to their injuries and died. The complainant moved the dead-bodies of his brother and uncle and injured to RHC, Khanpur and thereafter lodged the F.I.R.

2. The learned counsel for the applicant argued that there is no reasonable ground to believe that the applicant has committed any offence and all the prosecution witnesses are interested and related to the complainant. During the course of investigation, the names of accused persons Lateef, Mujee and Saddam were placed in Column-2 of the Challan. He further argued that in the F.I.R. it has been alleged that accused Gulsher, Gul Muhammad and Khan Jan fired upon deceased but in the postmortem report, there are only two injuries, therefore, it is yet to be determined that which of the accused caused those injuries to the deceased; hence the case requires further inquiry. He further argued that in the counter case, accused Gulsher is complainant which F.I.R. was lodged under the directions of Justice of Peace under sections 324, 148, 149, 114, 337H/2, P.P.C., in which date and time of incident is same and after taking into consideration the counter case, in which, co-accused Gulsher had received serious injuries it is clear that the guilt of applicant can only be decided at the time of trial that which party was aggressor. In nutshell the arguments of the learned counsel for the applicant are that this is a case of further inquiry, therefore, the applicant is entitled for the bail during trial.

3. The learned counsel relied upon 1980 SCMR 784 (Jaffar v. State), in which, honourable Supreme Court held that material on record not showing as to which of the accused caused fatal injuries leaving room for consideration regarding common intention of other accused to kill the deceased, therefore, being a case of further enquiry bail was allowed. He next relied upon PLD 1996 SC 241 (Syed Amanullah Shah v. State), in which the honourable Supreme Court held that whenever reasonable doubt arises with regard to the participation of an accused person in the crime, or about the truth or probability of the prosecution case and evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in Jail during the trial. Finally, he relied upon 1996 SCMR 1845 (Shuaib Mahmood v. Iftikharul Haq). In this case honourable Supreme Court dilated upon section 497(2), Cr.P.C. and held that bail is to be allowed if it appears to the Court that there are sufficient grounds for further inquiry into the guilt of accused. Now what would constitute as sufficient ground for further enquiry would depend on the peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined was not made out a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in Clause-2 of section 497, Cr.P.C. is that there are sufficient grounds for further enquiry into his guilt, which means that the question should be such which has nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C. but there are ground for further inquiry which may show that he may not be convicted of the charge under section 302, P.P.C. but may be acquitted or convicted for a lesser offence.

4. On the other hand, the learned State counsel argued that the applicant has been named in the F.I.R. with specific role, Kalashnikov was also recovered with live bullets and all the prosecution witnesses have supported the prosecution case. He further argued that 22 empties of Kalashnikov were recovered along with 12 empties of G-3, 8 empty shells of TT pistol and blood-stained earth was also recovered and sealed separately. So far as postmortem report of Jan Sher is concerned, the learned State counsel pointed out that there is a detail of wounds which shows at least 12 L.T.P entry and exit wounds, therefore, he vehemently opposed the bail application.

5. After hearing the arguments of the learned counsel, we have reached to the conclusion that in the F.I.R., specific role has been assigned to the applicant that he along with two other accused directly fired upon the brother of the complainant with Kalashnikov and from the place of incident 22 empties of Kalashnikov were also recovered. It is also a fact that two persons lost their lives and one was severely injured. It is also a fact that incriminating weapon was recovered from the applicant, which shows that he along with other co-accused formed an unlawful assembly with their common object to commit murder of Khurasan and Jan Sher.

6. So far as question of counter-version is concerned, we have examined the F.I.R. No.3 of 2011 lodged by accused Gulsher. It is a matter of record that this F.I.R. was lodged on the directions of Justice of Peace vide order dated 31-12-2010. Though the place of incident is same but the complainant while narrating the story, has implicated 13 persons in the above F.I.R. and also named Ghulam Sarwar, who is complainant in Crime No.166 of 2010. It is alleged that the complainant in Crime No.166 of 2010 along with other accused was gambling on fight of cocks and the complainant prevented them on which one Mughal Brohi became annoyed and instigated the co-accused to murder Gulsher and on his instigation, accused Ghulam Sarwar fired with his Repeater upon the complainant to murder him and accused Ali Abbas also fired upon the complainant while Zulfiquar fired upon Gul Muhammad (applicant). In this F.I.R. not a single word has been mentioned regarding the death of two persons and one injured person of the opposite party.

7. We have also seen the report submitted in Crime No.3 of 2011 in Court on 29-3-2011 in which, the I.O. has stated that the matter was investigated but there was no evidence against nominated accused. We are of the tentative view that the counter F.I.R. is afterthought which was lodged by concealment and factum of murder of two persons and the injuries sustained by Riaz have been suppressed.

8. The present applicant had applied for bail in the trial Court which was dismissed vide order dated 11-8-2011 with the observations that there appears reasonable ground to believe that the applicant is guilty of the offence. The postmortem report of Jan Sher is also showing various LTP entry and exit wounds. The grant or refusal of bail is normally a judicial exercise of discretion, it is incumbent upon the Court to make tentative assessment of the material collected by the prosecution. Deeper appreciation of evidence is neither permissible nor warranted at bail stage. But at the same time the Court is not precluded from tentative perusing the evidence of the eye-witnesses, the recovery, and the medical reports to form a tentative opinion as to whether the accused is prima facie connected with the commission of offence of murder or not. The case-law relied upon by the learned counsel for the applicant are distinguishable. In the first case reported in PLD 1996 SC 241 the matter pertains to the cancellation of bail in which the honourable Supreme Court held that when reasonable doubt arises with regard to the participation of an accused in the crime or about the truth or probability of prosecution case, the accused should not be deprived of benefit of bail but in this case prime consideration was for the Court to examine reasonable doubt regarding the participation of accused. In the next case reported in 1980 SCMR 784, the material on record was not showing as to which accused caused fatal injuries leaving room for consideration regarding common intention of other accused to kill the deceased. In the case in hand there is a specific role assigned to the present applicant who was armed with Kalashinkov and who directly fired upon deceased Jan Sher in presence of eye-witnesses. Even otherwise in the aforesaid reported case, injuries were inflicted upon the deceased through hatchet and lathi and not through fire arm, therefore, there was a confusion in the medical report. The next case which is reported in 1996 SCMR 1845 relevant to the phrase "further enquiry" and the honourable Supreme Court held that sufficient ground for further inquiry would depend in peculiar facts of each case and no hard and fast rule can be laid down for that purpose, every hypothetical question which can be imagined would not make it a case of further enquiry. Sufficient ground for further enquiry means that the question should be such which has nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with which he is charged. In the same judgment honourable Supreme Court has also discussed counter-version arising from the same incident one given by the complainant in the F.I.R. and other given by the opposite party and it was held that in such cases normally the bail is to be granted on the ground of further inquiry for the reasons that the question as to which version is correct is to be decided by the trial Court which is supposed to record the evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of counter-version normally plea of private defence is taken, giving rise to a question as to which party is aggressor and which party is aggressed against.

9. We have also considered the probability of counter version in which no plea of self-defence has been taken as held by honourable Supreme Court (supra) but only it has been mentioned that Ghulam Sarwar and Allauddin fired upon the complainant Gulsher but it is nowhere mentioned that during such incident the other party lost two lives and one person was seriously injured which hardly makes out a case of counter version which is based on suppression of facts, therefore the question that which party was aggressor and which party was aggressed against does not arise at this stage. The question of bail has to be determined in the light of prosecution version including the gravity of offence conduct and role ascribed to the accused, mode and manner of crime and the material available on record. There are reasonable grounds available to believe that the applicant is guilty of offence therefore this bail application is dismissed. However, it is clarified that the observations made in this order are tentative in nature and same shall not prejudice the case of either party. Since the challan has already been submitted, the trial Court is directed to conclude the trial preferably within a period of three months. After recording the statement of some material witnesses, the applicant will be at liberty to move fresh bail application in the trial Court if any ground for bail is made out. H.B.T./G-48/K Bail granted.