2013 P Cr (PLP)

MUHAMMAD ALI MAZHAR, J.

The applicants have applied for post arrest bail in Crime No.74 of 2010 under sections 302, 324, 147, 148, 149, P.P.C., lodged at Police Station Hingorja, District Khairpur on 13-9-2010. The complainant Ghulam Sarwar recounted the incident as under:-- "We have old dispute with Ashiq and others therefore they were annoyed with us. On 11-9-2010, I, Qaimuddin, Mohabat Ali, Asghar Ali and Peroze all the five persons were coming back to the village after Eid prayer and were going to graveyard, while returning back and reached near Nou Lakhi Bridge, six armed persons were standing out of whom five were identified to be each one accused Ashiq Hussain with K.K, Allah Bux with pistol, Sharif with rifle, Hub Ali alias Shahan with repeater and Ghulam Nabi with pistol and one unidentified person with repeater. Accused Ashiq Hussain challenged to stop while accused Ashiq Hussain fired at Mohbat Ali with K.K., accused Hub Ali fired at Mohbat Ali with repeater and other accused made indiscriminate firing. Accused Sharif caused butt blows of rifle to Qaimuddin on his head. We raised cries and villagers attracted on the noise of fire arm. We took Qaimuddin and his son Mohbat Ali for quick medical aid to RHC Hingorja in vehicle where we saw injured Mohbat Ali had injuries on his chest and Qaimuddin had sustained head injury with butts. I rushed to Police Station for getting letter of treatment and admitted injured in RHC Hingorja wherefrom we got referred injured to Civil Hospital Khairpur and while we were on our way to Khairpur, my nephew Mohbat Ali succumbed to injuries within our sight. I brought dead body of my nephew to RHC Ranipur for postmortem and Qaimuddin was admitted in Civil Hospital Khairpur".

2. The learned counsel for the applicants argued that the applicants have been involved due to previous enmity with the complainant party. Two accused involved in the same crime namely Allah Bux and Sharif have already been granted bail. He further argued that this is a case of counter-version and it is to be seen at the time of evidence and trial that who was aggressor and who have been aggressed. It was further averred that during investigation accused Ashiq was found innocent and his name was shown in Column No.2, which fact is sufficient to believe that the present applicants have been falsely involved in the case. The complainant lodged the F.I.R. after delay of two days and such delay has not been explained properly. The learned counsel further argued that for the same incident, the accused party has also lodged Crime No.73 of 2010 on the day of incident which was prior to lodging of F.I.R. by the present complainant and in Crime No.73 of 2010 the present applicants Hub Ali and Ghulam Nabi are the eye-witnesses who fully supported the version of the complainant in that F.I.R. In support of his arguments, the learned counsel for the applicants referred to case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq reported in 1996 SCMR 1845, in which the hon'ble Supreme Court held that in case of counter-versions arising from the same incident, one given by complaint in F.I.R. 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 section 497(2), Cr.P.C. In such cases normally bail is granted on the ground of further inquiry 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. The Hon'ble Supreme Court further referred to its own judgment delivered in the case of Fazal Muhammad v. Ali Ahmad (1976 SCMR 391) and held that in cross cases the High Court granted bail to the accused on the ground that there was probability of counter-version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held that in such circumstances the High Court was right in granting bail and no interference was warranted. Reliance can be made to the case of Mst. Shafiqan v. Hashim Ali (1972 SCMR 682).

3. On the other hand, the learned APG argued that two witnesses have been examined and six witnesses are still to be examined by the trial Court. He further argued that the deceased Mohbat Ali sustained 10 injuries while 4 injuries were caused to injured Qaimuddin. The learned APG further argued that though the F.I.R. was lodged with two days delay but the matter was reported on the same date i.e. 11-9-2010 vide Entry No.10 on the basis of which letter was issued for medical. So far as the plea of counter-version is concerned, the learned APG referred to a judgment of the Hon'ble Supreme Court reported in 2005 SCMR 1402 (Arif Din v. Amil Khan) in which the Hon'ble Supreme Court held that if the courts are made bound to consider every cross case a case of further inquiry and thus to grant bail to all the persons involved, it would lead to various anomalous and complicated situation. Every accused in murder cases would come forward with a frivolous cross-version in order to make it a case of further inquiry and to get released on bail. It is to check these frivolous situations that even in cross cases the courts are permitted to make tentative assessment. At times, it is quite difficult to presume that a cross case is false but at times the frivolity is apparent on the face of record. The learned APG further referred to a judgment of the divisional bench of this court authored by me (Muhammad Ali Mazhar, J.), reported in 2012 YLR 273 (Gul Muhammad alias Gul Jan v. The State) in which it was held that 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. In this case also the divisional bench considered the probability of counter-version in which no plea of self defence was taken but it was only stated that Ghulam Sarwar and Alauddin fired upon the complainant but it was nowhere mentioned that during such incident the other party lost two lives and one person was seriously injured which hardly made out a case of counter-version, which was based on suppression of facts therefore the question that which party was aggressor and which party was aggressed did not arise.

4. The learned counsel laid much emphasis that in the same crime number, co-accused Allah Bux and Muhammad Sharif were granted bail by the learned Additional Sessions vide order dated 18-3-2011. It is clear from the allegations raised in the F.I.R. that no overt act has been attributed to the co-accused Allah Bux except that he was present at the place of incident with pistol while Muhammad Sharif had allegedly caused file butt to Qaimuddin who sustained four injuries on his head and three injuries as per provisional medical certificate indicated that the injuries were caused by hard blunt object while the fourth injury was caused by fire arm, hence their case was considered to be a case of further inquiry. Similarly, the learned counsel argued that Ashiq Hussain against whom specific allegation was raised that he fired upon Mohbat Ali with K.K. was shown in Column No.2 and he was let off by the police. The learned trial Court in its order dated 13-4-2011, whereby the bail application of present applicants was dismissed, observed that during the course of investigation police kept the name of co-accused Ashiq Hussain in column No.2 of challan while the rest of the accused were shown as absconders, but the learned Magistrate in spite of showing the name of accused Ashiq Hussain in Column No.2 of challan issued NBWs against all the accused persons which shows that the recommendation of Investigation Officer to let off co-accused Ashiq Hussain was not accepted. So far as the counter-version raised in Crime No.73 of 2010 is concerned, the complainant Waheed Ali though stated that Qaimuddin and Mohbat Ali received injuries from their own accomplices but nothing has been mentioned that in the same incident Mohbat Ali succumbed to injuries. However, it is submitted that accused Pervez made direct firing upon the complainant's uncle Bashir Ahmed with K.K. in which Bashir Ahmed died.

5. It is well-settled that in each and every counter-case or counter-version, it is not obligatory upon the court to grant bail on the ground of further inquiry. The case-law relied upon by the learned counsel for the applicants reported in 1996 SCMR 1845 as regards to the case of counter-version is distinguishable. Even in this case while considering section 497(2) of Cr.P.C., the hon'ble Supreme Court held that to determine the question whether bail was to be granted or not, the court was bound to make tentative assessment of the material placed before it. The court however should refrain directly or indirectly from giving any conclusive finding on the question of guilt or innocence of accused. Bail is to be allowed if it appears to the court that there are sufficient grounds for further inquiry into the guilt of the accused. Now what constitutes as sufficient grounds for further inquiry would depend upon 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 would not make it a case of further inquiry 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 accused is not guilty of the offence with which he is charged. The Hon'ble Supreme Court in the case of Arif Din (supra) held that tentative assessment is permissible at bail stage and mere existence of cross case cannot be a ground for grant of bail. Bail to all the parties cannot be granted simply because of the existence of cross-version and without making tentative assessment of given circumstances, court cannot be made bound to consider every cross case a case of further inquiry and thus grant bail to all persons involved. At times, it is quite difficult to presume that the cross case is false but at time the frivolity is apparent on the face of the record.

6. In the present case, it is apparent from F.I.R. that Ashiq Hussain fired upon Mohbat Ali with K.K. and Hub Ali (applicant No.1) fired on him with repeater as a result of which, Mohbat Ali lost his life, therefore, at this stage the applicant Hub Ali is not entitled to be released on bail. So far as the role of second applicant Ghulam Nabi is concerned, his role assigned in the F.I.R. is not different than the role of co-accused Allah Bux. No overt act has been attributed to the applicant Ghulam Nabi except that he was present at the place of incident with pistol but in the F.I.R. nothing has been said against him which may demonstrate that he caused any injury either to Qaimuddin or to deceased Mohbat Ali and in the similar circumstances and with the same role Allah Bux was granted bail by the trial Court. In my view the role of applicant Ghulam Nabi and the allegations against him requires further inquiry. The learned counsel has also attached copy of bail order of Ijaz Hussain, who is co-accused in Crime No.73 of 2010. Let it be clarified that though in the F.I.R. it was stated that co-accused Ijaz made direct firing but specific allegation was levelled against co-accused Pervez, who allegedly fired directly upon the complainant's uncle Bashir through K.K. and he succumbed to injuries.

7. As a result of above discussion, the bail application of applicant Hub Ali is dismissed. However, the case of applicant Ghulam Nabi requires further inquiry, therefore he is ordered to be released on bail subject to furnishing solvent surety in the sum of Rs.2,00,000 (Rupees Two Lacs Only) with PR bond in the like amount to the satisfaction of the trial Court. The observations made above are tentative in nature and shall not prejudice the case of either party. MWA/H-8/K Order accordingly.