Case of cross-versions

[Per Jamal Khan Mandokhail, J. [Majority view]: Admittedly there was an issue between the parties in respect of land where the incident had occurred

Claim of the complainant was that the petitioners and others attacked upon the father of the complainant with sticks who was injured and subsequently he was thrown in front of the tractor and the tractor ran over their father, which resulted into his death

On the other hand, the petitioners denied the claim of the complainant and narrated that the complainant was the aggressor who attacked upon them

Role of each of the accused had to be established subsequently, in the light of medical report showing cause of death

Case of the prosecution had to be proved through cogent and reliable evidence, which was yet to be produced before the Trial Court

At present stage, on a tentative assessment, prima facie, the petitioners could not be singled out for commission of the offence

Their involvement in the case was one of a further inquiry, on the basis of which, the petitioners were entitled for the grant of bail

Petition was converted into an appeal and was allowed; and the petitioners were granted post-arrest bail]

[Per Syed Hasan Azhar Rizvi, J. [Minority view]: Perusal of the record indicated that all the petitioners were expressly nominated in the FIR with specific roles attributed to them

They collectively caused injuries to the deceased and threw him in front of the tractor

Petitioners had not disputed the time, date, and place of occurrence or their presence at the time of occurrence

Medico legal certificate available on record fully supported the prosecution case

There was no contradiction between the medical report and the version put forth by the complainant

Cross-version was registered after a delay of one month and 03 days

Petitioners filed their first post-arrest bail before the Trial Court wherein they never mentioned about the alleged occurrence as mentioned in cross-version

Offence of qatl-i-amd alleged in the present case, being punishable with death or imprisonment for life under Section 302, P.P.C., fell within the prohibitory clause of Section 497(1), Cr.P.C

Present case, on tentative assessment, did not seem to be one of the further inquiry

Petition was dismissed; leave was refused, and consequently petitioners were denied post-arrest bail.

In cases of counter versions arising from the same incident, one given by the complainant in the FIR and the other given by the opposite party, bail is granted as a rule on the ground of further inquiry for the reason that the question as to which version is correct is to be decided after recording of pro and contra evidence during the trial and also to ascertain which party was the aggressor or was aggressed upon

Refusal of bail in such cases is an exception.

Parties were related to each other and were involved in a conflict/dispute over a housing society launched by the petitioner's (accused's) late father

Hence, possibility of false implication and mala fide intention (of complainant) could not be ruled out

Apart from this, it was a case of cross-version

Petitioner in his cross-version had alleged that complainant party was the aggressor because petitioner's side had right to enter into the housing society being the owners of same

Moreover, in the FIR it was alleged that one passerby was injured due to firing of the accused persons however police had conducted no investigation into his injury which also made the case of petitioner as one of further inquiry within the ambit of section 497(2), Cr.P.C

Petition was converted into an appeal and allowed, and the petitioner was admitted to pre-arrest bail.

Principles relating to the grant or refusal of bail in cross-cases stated.

[Per Qazi Faez Isa, J. [Majority view]: In the present case the daily diary, which recorded the petitioner's version of events, simply stated that the petitioner's side was fired upon by the complainant's side, but it was not stated why the petitioner's side had fired, or returned fire, let alone taking the plea of self-defence

Daily diary also did not attribute motive to the complainant's side

What the police daily diary recorded did not constitute a cross or different version of events, and which may have persuaded the Court to grant bail to the petitioner

Daily diary on which the petitioner relied confirmed his presence at the crime scene, where two persons from the complainant's side were killed and one was injured

Moreover, the State did not move for cancellation of bail granted to the complainant's side and though the petitioner's side did move for cancellation of bail of one of the co-accused it then withdrew the same

Petition was dismissed, leave to appeal was declined, and consequently petitioner was refused bail

[Per Yahya Afridi, J.; dissenting [Minority view]: In the instant case., distinct versions of how the events unfolded, which lead to the commission of the crime, had been put forth by the contesting parties

Time and place of the occurrence were admitted by both parties

However, the facts of the present case did not prima facie put forth which party was an aggressor, as it was a common path close to the dwelling place of both parties, and both were armed with firearms

Admittedly, both parties had recognized the general role of firing firearms at each other, leading to injuries on both sides

In particular, the petitioner had not been reported to having had an effective role in causing injury to any of the two deceased or injured persons

In the cross FIR lodged by the petitioner's side, the complainant party, who were accused of the general role of firing resulting in injury to five persons belonging to the petitioner's side, had all been granted bail after arrest

And thus, denying bail to the petitioner in present FIR, when the two cases prima facie were cross-cases, would not be appropriate

Petition was converted into an appeal and allowed, and consequently the petitioner was admitted to bail.

At present, the complainant as well as accused, had given their own versions in respect of the manner in which the alleged incident took place

Possibility of false implication or concealment of real facts by both parties, or by either party, could not be ruled out at bail stage

Cases of cross versions arising from same incident are covered for grant of bail on the ground of further inquiry as contemplated by S.497(2) of Cr.P.C.

It was yet to be determined and decided by the Trial Court, as to which version put forth by either party was correct, after recording of evidence

Determining as to which party was the aggressor and which was aggressed upon required deeper appreciation of evidence which was prohibited by law at bail stage

There were reasonable grounds for further probe into the guilt of the accused

Bail was granted to the petitioner / accused , in circumstances.

As per the contents of the crime report, the allegation against the petitioner was that he along with his co-accused committed murder of two brothers by firing and caused firearm injuries to another person

Record showed that during probe cross-version of the case was also brought on record upon the application moved by Mr. "A"

According to the counter-version, one of the accused persons of F.I.R received a bullet injury on his left arm due to a shot statedly fired by Mr. "Q"

As per record, said injured was examined at THQ Hospital shortly after the incident and was found in receipt of a firearm entry wound on the left bicep which had a corresponding exit wound as well as a fracture

Investigating Officer informed that the facts emanating from the counter-version of the incident were found to have truth in them

Procedural relief of bail was generally granted in cases of two versions in the absence of some extraordinary circumstances, more importantly when the counter stance of the accused about the same incident was supported by some record and investigation

Courts lean in favour of extending the concession of post-arrest bail to an accused in cases of cross-version on the premise that in such like cases it is always in fitness of things to leave the question of initiation of aggression to the trial Court where it could best be decided after in-depth analysis of the evidence

In routine ipse-dixit of the police without evaluating the supporting reasoning was not considered sufficient for the grant of post-arrest bail in a homicide case

Such opinion in favour of an accused could still be used for enlarging him on post-arrest bail if it was based on some confidence inspiring material by examining it on the touchstone of tentative assessment

Courts were not oblivious of the fact that vested interests, defective investigations and dishonest opinions had eroded and polluted the investigation process of criminal cases

At the same time, the vengeance of litigants prompts them to grill some innocent persons along with actual offenders in criminal cases and fair police investigation was the only tool left for lifting veil from the actual facts

In the instant case, it was observed from record that petitioner was declared innocent on the basis of visuals of incident captured in CCTV camera installed adjacent to the crime scene

Said visuals were also forwarded to Forensic Science Agency and it was reported that the clips were free from editing and tampering

Needless to mention here that such video clips had legal admissibility in consonance with Arts. 46-A & 164 of Qanun-e-Shahadat, 1984, thus could be taken into consideration even at bail stage

According to the police opinion based on these visuals, in fact the complainant-side mounted an aggression to take the life of petitioner who got married earlier in the day but unfortunately two brothers became victims of that attack, though none out of them had any concern with the ongoing enmity of the two families

Petition was allowed in circumstances and petitioner was admitted to bail.

Where there is a case of two versions narrated before the Court, it squarely falls within the ambit of (further inquiry) section 497(2), Cr.P.C.

Admittedly father of the present accused had firstly lodged an FIR against the complainant of the present case with the allegation that the complainant and his co-accused severely beat two of his sons and caused them several injuries

Medico legal certificates available on record prima facie support the accusation of father of accused

After six days of the incident complainant lodged the present cross-version FIR, wherein he nominated the present accused

Stance of the accused was that infact the complainant party was the aggressor and they had just exercised their right of self-defence

Opinion of the Investigating Officer regarding the overt act of the accused had to be evaluated after recording of evidence as an abundant caution

Possibility of false implication of accused just to pressurize the accused side to gain ulterior motives could not be ruled out

Trial Court after recording of evidence would decide about the guilt or otherwise of the accused and until then he could not be put behind the bars for an indefinite period

Present case was of two versions narrated before the Court, thus, it squarely fell within the ambit of (further inquiry) section 497(2), Cr.P.C.

Petition for leave to appeal was converted into appeal and allowed, and ad-interim pre-arrest bail granted to the accused was confirmed.

Mere existence of a cross-version could not alone be considered a sufficient ground to grant bail to an accused.

Record revealed that the incident in issue occurred in front of the shop of complainant, which was across the road where the accused being a rickshaw driver was waiting for passengers

Complainant wanted the accused to vacate the occupied place which resulted in an altercation

Complainant along with his sons was running a barber shop and on hearing altercation between the two they also joined hands with their father and entered into a scuffle

Complainant received a firearm injury on his body whereas the accused sustained incised wounds at the hands of the complainant party

Both parties reported the matter to the police in the hospital where on the strength of the report of complainant the FIR was registered whereas version of the accused was penned down in the shape of a report charging the complainant along with his sons for commission of the offence

Moot question for the High Court was to determine as to who was the aggressor and who was aggressed upon, which at present juncture was not possible rather the same could better be determined after recording pro and contra evidence

Accused had succeeded in making out a case of further inquiry

Petition for grant of bail was allowed, in circumstances.

Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, mutalahimah,mudihah, hurt by rash or negligent act, rioting, armed with deadly weapon, common object and common intention

Bail, grant of

Case of cross-versions

Scope

Accused was alleged to have fired at the deceased whereas case of accused was that the complainant party fired at him and his witnesses

High Court observed that there was no mention of the injuries received by accused and his witnesses in the FIR and on the other hand, in the cross-version, there was no explanation regarding the death of deceased

Trial Court had to see, after recording of evidence, as to which party was the aggressor

Both the parties had given their own versions qua the manner in which the incident had taken place and possibility of suppression of real facts by both the parties could not be ruled out

Cases of counter-version arising from the same incident were covered for grant of bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.

Petitions for grant of post-arrest bail were allowed, in circumstances.

Nature of injuries is not relevant at bail stage, in a case of cross-versions.

Allegation against accused was that he and co-accused, while armed with different weapons launched an attack upon the complainant party and caused injuries to prosecution witnesses

Accused was assigned the role of making a fire shot at the chest of eye-witness and inflicting butt blow of rifle on the head of another

Present was a case of cross-versions and the accused was also injured

Accused was medically examined on the day of occurrence and as per medico legal report, there was no possibility of fabrication of his injuries

Accused was medically examined through police

Complainant party had not challenged the medico legal report before any higher forum

Members of both the parties were injured during the occurrence, therefore, irrespective of their injuries, it was not determinable at bail stage, as to who started the occurrence

Petition for grant of bail was allowed, in circumstances.

Complainant reported that the accused persons entered into the house of their paternal aunt and one of them fired upon her as a result of which she died

Complainant was involved in the case on the statement of brothers of deceased

Brothers of the deceased were not eye-witnesses of the occurrence and worth of their evidence would be determined by the Trial Court after recording evidence

Case of complainant was one of further inquiry as envisaged in subsection (2) of S.497, Cr.P.C.

Investigation to his extent was already complete and he was not required for further investigation

Petition for grant of bail was accepted, in circumstances.

Hurt, assault or criminal force with intent to dishonour person otherwise than on grave provocation, rioting armed with deadly weapon, unlawful assembly

Bail, grant of

Further inquiry

Case of cross-versions

Accused was attributed the role of causing injury on the nose of injured

Medical examination of injured was conducted with a delay of two days

Cross version was recorded with a delay of three days which prima facie showed that some had been recorded after due deliberation and consultation

Injured had not appeared before the Standing Medical Board constituted by the order of Magistrate for his medical re-examination despite summoning for three times

Case had become the case of two versions after registration of cross version and as to which party was aggressor would be determined by Trial Court after recording evidence

In a case of cross versions, if one party had been allowed bail, the other party would also be entitled to the same relief

Accused was previous non-convict and never involved in any other case

Accused was behind the bars since five months

Investigation of case was complete and accused was no more required for further investigation

No useful purpose would be served by keeping the accused behind the bars

Case of accused had become one of further inquiry covered by subsection (2) of S.497, Cr.P.C.

Bail was granted accordingly.

Accused had not only been specifically burdened with the liability of firing on the chest of the accused, but he had caused injuries on the right thigh and right shoulder of the injured person

Necropsy report of the deceased revealed that the chest injury on his body, together with the injury on his thigh, was fatal in nature

Medico-legal report of the injured person was in line with the FIR, as to the injury on his right thigh; however, the report did not show any injury on his right shoulder

Accused had made indiscriminate firing together with his co-accused, which had hit a passerby, who had succumbed to the injuries

Post-mortem of the deceased showed three firearm injuries, which all were result of a single shot

Cross-case (got registered by the son of the deceased/passerby against the complainant party alleging the complainant party to be the aggressors) had been found false during the course of investigation and all the accused of the cross-case had been declared innocent by the Investigating Officer

Delay of nine days in joining the investigation by the complainant of the cross-case was not an ordinary circumstance

Complainant of the cross-case appeared to have decided to take side of the accused party and to go against the complainant party

Investigating team had opined that the parties had clashed on the issue of parking of vehicle and situation aggravated to such extent that the guard of the accused persons opened indiscriminate firing using their illicit weapons resulting in death of the deceased persons

Opinion of the investigation team regarding one of the accused, that he had remained present at the nearby dera along with his bodyguard, who had used his illicit weapons without any commandment from him, did not impress the Court, as the story of the cross-version being false had been rejected by them

Injured prosecution witnesses and other eyewitnesses of the occurrence had supported the prosecution case as contained in the FIR

Private complaints, both filed by the complainant of the FIR and by the complainant of the rejected cross-case, did not create any compelling circumstance, on the basis of which the accused might be held entitled to the grant of bail

Mere registration of the cross FIRs or cross-cases could not be considered to be a ground for granting bail to the accused, if he was otherwise not entitled to said relief

Accused had been found involved in the case during the investigation and his name had been placed in column No. 3 of the Challan

Offence in question entailed capital punishment besides being gruesome in nature

No reasons existed for further probe into the guilt of the accused

Bail application was dismissed accordingly.

Every case of cross-version did not necessarily make the guilt of the accused a matter of further inquiry and the courts in such cases might resort to tentative assessment of material placed before them to form an opinion whether a case of further inquiry qua an accused was made out or not.

Qatl-e-amd, rioting armed with deadly weapons, unlawful assembly, shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, ghayr-jaifah-damiyah, ghayr-jaifah-mutalahimah, ghayr-jaifah-hashimah, other hurt

Bail, grant of

Further inquiry

Case of cross-versions

Accused was alleged to have caused hatchet blows to the deceased during the occurrence

Accused was not connected with the motive part of the prosecution story, which was relatable to an incident which took place a day earlier to the day of the occurrence

F.I.R. was inconsistent qua accused inasmuch as in the earlier part of the F.I.R., it was alleged that he was armed with an iron rod, whereas in the operative part it was alleged that he was carrying a hatchet

F.I.R. stated that accused and one of the co-accused gave hatchet blows on the left side of deceased's back, however post-mortem report showed that there was only one injury on left side of deceased's back

Question as to who caused the said injury would remain a moot point

Ten out of a total of nineteen accused of the present case had already been declared innocent during investigation

Five accused of the present F.I.R. had already been granted bail

Accused side had also filed a counter version/private complaint wherein the complainant party had been summoned

Accused was in jail for more than one year and his trial had not commenced

Question of guilt of accused required further inquiry and he was released on bail accordingly.

Rule followed in cases of counter-version was that if one party was granted bail, the other party was also entitled to the same relief, but such rule would be applicable in cases of genuine counter-version

Mere filing of cross-case against each other could not be considered a good ground for release of accused on bail, unless an element of genuineness was present.

Where one party was allowed bail then the other party also became entitled for the same treatment.

Accused persons while armed with weapons allegedly entered house of complainant and murdered the deceased persons and causing injuries to several persons

Motive for the occurrence was due to enmity over property

Contention of accused persons was that occurrence consisted of two versions; that a cross-version F.I.R. had been lodged against the complainant party, therefore, it was yet to be seen as to which part was the aggressor, and that one of the accused specifically nominated for committing murder was let off by the police during investigation

Validity

Cross-version F.I.R. lodged by accused side mentioned that incident took place near house of complainant party, and even otherwise said F.I.R. was lodged a day after the present F.I.R. lodged by complainant party

Such circumstances showed that occurrence as reported in cross-version might have taken place in retaliation of occurrence as reported in present F.I.R.

Question of counter-version would be decided after examination of prosecution witnesses during trial

Plea of counter version raised by accused side could not form basis for grant of bail in such circumstances

Letting off of one of the accused during investigation would not damage the prosecution case against the remaining accused, rather it made the investigation fair

Accused persons were nominated in the F.I.R. with specific role attributed to each one of them

Prosecution witnesses also supported the contents of F.I.R. making specific allegations against the accused

Presence of witnesses at the time and place of occurrence was proved due the injuries sustained by them

Weapons were recovered from possession of accused and empties had also been secured from the place of incident

Motive for the alleged occurrence was not denied by the accused

Offence alleged was punishable with death or imprisonment for life as such no case for bail was made out

Bail application of accused persons were refused accordingly.

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, that would lead to various anomalous and complicate situations

Every accused in murder case would come forward with a frivolous cross-version in order to make it a case of further inquiry and to get released on bail, and it was to check these frivolous situations that even in cross-cases the courts were permitted to make tentative assessment.

In case of counter-version arising from the same incident, one given by complainant in the F.I.R. and the other given by the opposite party, it was almost settled that such cases were covered for grant of bail on the ground of further inquiry as contemplated under section 497(2) Cr.P.C, as it was to be decided by the Trial Court as to which version was correct after recording evidence and appraising the same.