2024 P Cr. LJ 1778
[Balochistan (Sibi Bench)]
Before Gul Hassan Tareen, J
GHULAM NABI ----Applicant
Versus
The STATE ----Respondent
Criminal Bail Application No.(s) 28 of 2023, decided on 10th March, 2023.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss. 324, 147, 148 & 149 ---Attempt to commit
qatl-i-amd , rioting , rioting armed with deadly weapons, unlawful assembly --- Bail , grant
of---Further inquiry---Case of cross -versions ---It was yet to be seen by the Trial Court, after
recording of evidence, as to which party was the aggressor ---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.
Sadiq and others v. The State 2020 SCMR 677; Shoaib Mehmood Butt v. Iftikhar -ul-
Haq and 3 others 1996 SCMR 1845 and Muhammad Zahid Umar v. The State and others 2016 SCMR 1246 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss. 324, 147, 148 & 149 ---Attempt to commit
qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly--- Bail , grant of --
-Further inquiry ---No specific role attributed to accused ---Petitioner /accused was not
attributed specific role of firing by the complainant of cross -version and no recovery was
affected from the petitioner / accused during the course of investigation--- Keeping accused in
custody would not serve any legal purpose ---Bail is not to be withheld as a punishment ---
There were reasonable grounds for further probe into the guilt of the accused---Bail was granted to the petitioner / accused, in circumstances.
Manzoor and 4 others v. The State PLD 1972 SC 81 ref.
Rizwan Ali Soomro for Applicant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 9th March, 2023.
ORDER
GUL HASSAN TAREEN, J .---This order disposes of post arrest bail application
filed by the accused Ghulam Nabi son of Shakar Khan, for his release on bail in cross version case of same FIR No. 14 dated 30 January, 2023, registered under sections 324, 147, 148 and 149, the Pakistan Penal Code, 1860 ("P.P.C") at Police Station, City Usta Muhammad, District Usta Muhammad.
2. The precise allegations against the accused are that on 30 January, 2023 at 4:10 p.m.,
complainant namely Muhammad Usman along with his brothers namely Waris and
Muhammad Saleem was returning back towards his home from the city. The deceased Shakar Khan, in his white colour Alto car, along with his son Ghulam Nabi (accused) and two unknown persons were approaching, whom on seeing them, started firing at them from inside
the car with intention to commit Qatl- i-Amd. Meanwhile, Ghulam Muhammad, allegedly
armed with T.T pistol, standing nearby also opened firing at them. Resultantly, complainant
Usman and his brother Waris sustained fatal bullet injuries at the spot, whereas their brother Muhammad Saleem, taking shelter with the canal, ran away to save his skin. The motive alleged in the cross version, is an old enmity. On such accusation of the complainant, a cross version was recorded in the same FIR.
3. The accused applied before the Court of learned Sessions Judge, Usta Muhammad for
his release on bail which was declined by the Court on 17 February, 2023.
4. Mr. Rizwan Ali Soomro, Advocate, appearing on behalf of accused, submits that no
specific role was attributed to the accused in relation to the commission of alleged offence; that the accused along with his father was coming back when complainant of cross version along with his brothers made a murderous attack upon them due to which accused sustained fire arm injuries while his father succumbed to the injuries at the spot and FIR No. 14/2023 was registered against the complainant and his brothers; that the complainant lodged the cross version of the incident merely to shift the liability of the death of accused's father and to compel them for entering into a compromise and to cause dents in their case lodged under sections 302, 324, 427, 147, 148, 149, P.P.C; that investigation of the case has been completed, whereas no recovery has been effected from the possession of the accused. Concluding his arguments, the learned advocate submits that, even otherwise, the provisions
of section 324, P.P.C are not attracted in this case because injuries on the persons of the complainant and his brother, are not on vital parts of body; therefore, accused is entitled to be released on bail.
5. Mr. Abdul Karim Malghani, learned State Counsel submits that the accused has been
nominated in the cross version case with a specific role and the provisions of section 324, P.P.C attract in the instant case, which falls within the prohibitory clause of section 497(1), Cr.P.C, as well as non -bailable in nature. Finally, the learned State Counsel submits that bail
application should be dismissed.
6. Heard learned counsel for the parties at length and gone through the record of the
case.
7. The tentative assessment of the record, at this stage, would indicate that as a result of
unfortunate fateful incident, the father of accused namely Shakar Khan lost his life and the
accused sustained injuries. A cross version of the same incident was also recorded and investigated by the Police Authority. The complainant Muhammad Usman is accused in case FIR No. 14/2023 for murder of the father of accused. The said cross version was recorded on the statement of the complainant in which he has not denied the alleged unfortunate fateful incident and has not denied the death of the father of accused. The accused also sustained injuries in the incident according to the opinion of the Medical Officer.
8. After investigation of the case, it was concluded by the Investigating Officer that both
parties were to be sent for trial for the offences allegedly committed by them. It is also a fact that the complainant of the cross version has not mentioned about the death of the father of the accused and of the injuries sustained by the accused and it has also not been explained that how the father of the accused succumbed to the fire arms injuries sustained by him in the alleged incident and how the accused sustained injuries. There is no explanation by the complainant in relation to the death of the father of the accused.
9. It is to be seen, after recording of evidence, by the Trial Court as to which party was
aggressor. At present, the complainant as well as accused, have 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, cannot be ruled out at this stage. It is by now a well settled proposition that in cases of cross versions arising from same incident are covered for grant of bail o n the ground of 'further inquiry' as
contemplated by section 497(2), Cr.P.C. It is yet to be determined and decided by the Trial
Court, as to which version put forth by either party is correct, after recording of evidence. Which party is the aggressor and which is aggressed upon require deeper appreciation of evidence which is prohibited by law at the bail stage. The Supreme Court of Pakistan in the case reported as Saqib and others v. The State, (2020 SCMR 677) has allowed bail to the
accused of cross version and observed as under:
"4. During the course of arguments, it has been noted by us and as confirmed by the
learned State counsel under instructions of the police officer present with record that during the occurrence two persons from petitioner side namely Saqib and Majaz, petitioners Nos. 1 and 3 also sustained injuries but those injuries have not been disclosed in the FIR. Learned counsel appearing on behalf of State also confirms that a cross version in this regard was also recorded and Challan in both cases i.e. FIR and cross version has been submitted. In these circumstances, it is for the trial court to determine as to who was the aggressor and who was aggressed upon, of course, after recording evidence of the parties. As for now, case against the petitioners calls for further enquiry falling within the ambit of section 497(2), Code of Criminal Procedure."
Reliance is also placed on the case of Shoaib Mehmood Butt v. Iftikhar -ul-Haq and 3
others, (1996 SCMR 1845), wherein the Supreme Court of Pakistan has held as under:
"16. In case of counter -versions arising from the same incident, one given by
complainant in FIR. and the other given by the opposite -party, case- law 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 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 or which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmad (19)0(sic) SCMR 391) 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 by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted. In the same context, reference can be made to the case of Mst. Shafiqan v. Hashim Ali and others (1972 SCMR 682)."
On the subject of grant of bail in cross version cases, I may place reliance on the case
of Muhammad Zahid Umar v. The State and others, reported in 2016 SCMR 1246, wherein the Supreme Court of Pakistan has held as under:
"Prima facie, both the parties have given their own version qua the manner in which this incident took place. Chances of suppression of real facts by both the parties cannot be ruled out. However it is for the learned trial Court to determine, after elaborate evaluation of the evidence to be recorded by it, as to which party was the aggressor and who was aggressed upon. Moreover, according to learned Additional Prosecutor General, challan in both the cases i.e. the instant FIR and the cross version has already been submitted in the trial Court. In this backdrop the case of the present petitioner, in the peculiar circumstances of the case, becomes one of further enquiry falling within the ambit of section 497(2), Code of Criminal Procedure."
10. The accused was not attributed a specific role of firing by the complainant of cross
version and no recovery was effected from the accused during the course of investigation. It
would not serve any legal purpose to keep the accused in custody. It is important to remember that bail is not to be with held as a punishment. Reliance is placed on the case
reported as Manzoor and 4 others v. The State, (PLD 1972 SC 81) wherein, the Apex Court
has held as under:
"It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and
incarceration of a guilty person can repair the wrong caused by a mistaken relief of
interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
11. For what has been discussed above, there are reasonable grounds for further probe
into the guilt of the accused. Therefore, the case of the accused is of further inquiry and therefore, covered by subsection (2) of section 497, Cr.P.C.
12. In view of above discussion, the accused Ghulam Nabi son of Shakar Khan is released
on bail in cross version of the case FIR No. 14/2023, registered under sections 324, 147, 148, 149, P.P.C, at Police Station City, Usta Muhammad, District Usta Muhammad, subject to his furnishing bail bonds in the sum of Rs. 200,000/ - (Rupees two hundred thousand) with PR in
the like amount to the satisfaction of the Trial Court or Additional Registrar of this Court.
13. However, I would like to point out in certain terms that, the observations made in this
order are confined to the tentative assessment, made for the purpose of disposal of this bail application and are not intended to influence the mind of the Trial Court, which is free to
appreciate the evidence on its merits and the law at the conclusion of trial, which indeed, it is
needless to say, is the function of the Trial Court.
MQ/117/Bal. Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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