2005 PLP 1402 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Arif Din son of Ashraf Din resident of Jandi Darsamand, District Hangu, seeks bail in a murder case by praying for leave to appeal against the judgment dated 14-1-2005 of a learned Single Judge of Peshawar High Court whereby the concession of bail was refused to the petitioner.

2. According to Report No.372 dated 19-9-2004 of Police Station Tall, Amil Khan, complainant has disclosed the occurrence with 45 minutes of the commission, to the effect that he along with Mumtaz-ud-Din and one Mumtal Khan had come to Tall Bazar from their village Jandi Darsamand and were present in Sarafa Bazar Tall, when suddenly Arif-ud-Din, Hamid-ud-Din and Baseer-ud-Din duly armed with fire-arms opened fire at them with which Mamtal Khan got seriously injured. He was being taken to the hospital when succumbed to the injures.

3. The present accused Arif-ud-Din also happened to lodge F.I.R. No.371, prior in time, about the same occurrence saying that he on the relevant time left his shop for the main bazaar in order to attend to some matter. While, he was going back to his shop and when he was near Sarafa Bazaar, Mamtal Khan (deceased in the opposite F.I.R.) Anab Gul and Saif-ud-Din appeared with fire-arms. Saif-ud-Din was having a klashnikov while Mamtal Khan and Anab Gul were armed with pistols. All the three opened fire at the complainant with which he got hit on the abdomen at two places. A case under section 324/34, P.P.C. was registered against the accused aforesaid.

4. The learned counsel for the petitioner while referring to the cross-version and also while relying upon our judgment in Shoaib Mehmood Butt's case 1996 SCMR 1845 claimed that it being a cross-case involved further inquiry and hence all should be released on bail.. It was further alleged that the Court should avoid entering into elaborate discussion to make any assessment about material facts of the case. This was the only argument advanced by the learned counsel.

5. An examination of the above-cited case would indicate that not elaborate but tentative assessment was always held permissible because if it was not so done, every hypothetical question taken up in a case would make it a case of further inquiry. The tentative assessment even in cases of cross-version was not discarded altogether. The above-ruling was subsequently, considered by this Court in case of Maqbool Muhammad 2005 SCMR 635 and the bail was disallowed after tentative assessment of the case. It was observed in Shoaib Mehmood Butt's case (supra), with reference to Fazal Muhammad's case 1976 SCMR 391 that in the given circumstances of cross-cases and upon tentative assessment of evidence the High Court was right in granting bail. This Court declined to interfere.

6. If the argument of the learned counsel is acceded to and 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 situations. 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 only safeguard against frivolous and false cross-cases is to make a tentative assessment without any conclusive finding on the subject.

7. Here in the instant case, too, the learned High Court has made a tentative assessment on the basis of two important circumstances. First that, due to acquittal of the complainant party in another murder case, it was the present accused party which had the r.rutive to retaliate and not the party which already stood acquitted. Secondly, that the assailants of the F.I.R. lodged by the present petitioner, are fully armed with semi-automatic as well as fully automatic weapons. That in spite of the fact that all the three opened fire at the petitioner, they could cause only a simple injury on the stomach. At least such assessment could tentatively be made in view of the given circumstances. It is strongly argued by the learned counsel for the complainant as well as by the learned State Counsel that the possibility cannot be ruled out that the injury caused to the petitioner was either self-inflicted or self-sustained. The learned counsel also added that despite grant of bail in the cross-case to the present complainant party, no cancellation of bail has, at all, been moved by the present petitioner.

8. While holding that a tentative assessment is permissible at bail stage and mere existence of,cross-case cannot be a ground for grant of bail, we are fortified by our own judgment in Nasir Muhammad Wassan's case 1992 SCMR

501. We, therefore, hold that bail to all the persons cannot be granted simply because of existence cross-version and without making tentative assessment of the given circumstances. In the B impugned judgment, too, the learned High Court has rendered its assessment as tentative and never held it to be conclusive. In the given circumstances, we are of the view that the learned High Court has 'properly appreciated the petitioner's case and has rightly declined a discretionary relief. There being no force in the petition it is hereby dismissed and leave to appeal refused. M.B.A./A-156/S Petition dismissed. ***