Wednesday, 30 May 2012

Bail allowed on rule of consistency

PLJ 2012 Cr.C. (Lahore) 278
[Bahawalpur Bench Bahawapur]

Present: Altaf Ibrahim Qureshi, J.

MUHAMMAD SHAFI alias SHABBOO--Petitioner

versus

STATE and another--Respondents

Crl. Misc. No. 1501-B of 2011, decided on 23.8.2011.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 302, 148, 149 & 336, 337-A (ii), 337-F(v) & 337-L(ii)--Bail, grant of--Cross versions--Motive--No more required by police for any purpose--Detention in jail would be of no avail to prosecution when trial was not in sight--Rule of consistency--Validity--In case of counter version, if one party was granted bail, the other too was also entitled to bail especially in the circumstances when a sudden fight without premeditation leading to a fatal occurrence emerged--No one can be definite as to which party initiated the attack and which exceeded its right of self defence--Case of accused falls within ambit of further inquiry u/S. 497(2), Cr.P.C.--Bail was allowed.         [P. 280] A & B

Ch. Nisar Ahmad Tatla, Advocate for Petitioner.

Malik Sadiq Mehmood Khurram, Advocate for Complainant.

Malik Muhammad Latif, DPG for State.

Date of hearing: 23.8.2011.

Order

Through the instant petition, the petitioner-Muhammad Shafi seeks his post-arrest bail in a cross-version case set-up by Gul Din-Respondent No. 2 under Sections 337-A(ii), 337-F(v), 337-L(ii), 336, P.P.C., arising out of FIR No. 231, dated 29.05.2010, registered with Police Station Yazman, District Bahawalpur, under Sections 302, 148 & 149, P.P.C.

2.  Precise allegation against the petitioner is that on 29.05.2010, he made a Chhura blow on the head of Gul Din, complainant of the cross-version, which hit the back side of his hand. This incident happened in the occurrence wherein petitioner's father namely Adam Khan lost his life and aforesaid FIR No. 231 was registered.

3.  Learned counsel for the petitioner submits that the co-accused of the petitioner namely Anwar Khan, whose role is graver than the present petitioner, has been allowed bail by the apex Court vide order dated 27.05.2011, therefore, the petitioner also deserves for the same relief. Further submits that the injury attributed to the petitioner has been declared as Jurh Ghair Jaifa Hashmia, which is not punishable with ten years imprisonment, thus, case of the petitioner does not fall within the prohibitory clause of Section 497(1), Cr.P.C. It is lastly contended that the cross-version was set up after more than three months of the occurrence whereby the petitioner has falsely been implicated, hence, the petitioner is entitled for the grant of bail.

4.  On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposed the bail petition on the grounds that the case of the present petitioner is not at par with that of his co-accused namely Anwar Khan, as the said co-accused was armed with sota whereas the petitioner was armed with Churra; that the present petitioner is nominated with specific role of causing injury on the hand of the complainant Gul Din, therefore, he is not entitled for the grant of relief prayed for.

5.  I have heard the arguments and perused the record.

6.  The motive introduced vide FIR No. 231/10 as well as in the cross-version is that two days prior to the occurrence, children of both the parties had a quarrel while playing cricket, which thereafter resulted in loss of life of petitioner's father namely Adam Khan and injuries to both the parties. After three months and 8 days of the occurrence, the cross version was got recorded by Gul Din-Respondent No. 2. Cross-version with such delay leads to an interference that the same was introduced after consultation.

7.  As stated above, admittedly, this is a case of two versions arising from one incident one given by the complainant of the FIR namely Allah Noor and the other by the complainant of the cross-version namely Gul Din. As to which version is correct and which party was aggressor, is to be determined by the learned trial Court after recording of evidence. This fact alone is sufficient to bring the case of the present petitioner within the ambit of further inquiry. In the admitted dispute, petitioner's father has lost his life and the persons from both sides sustained injuries Petitioner is behind the bars since 07.09.2010 and is no more required by the police for any purpose. His further detention in Jail would be of no avail to the prosecution especially when the trial is not in sight.

8.  Besides, Anwar Khan, co-accused of the petitioner in the cross-version case, who had caused injury with sota on the head from upper side of right eye of the present complainant has been allowed bail by the apex Court on 27.05.2011 through Criminal Petition No. 322-L of 2011, Similarly, through Criminal Petition No. 417-L of 2011, the honourable Supreme Court, vide order dated 08.07.2011, granted bail to Gul Din, complainant of the cross version case i.e. Respondent No. 2. In both the bail granting orders, it was observed that it was a sudden and free fight in which participants of both the groups sustained injuries. In case of counter version, if one party is granted bail, the other too is also entitled to bail, especially in the peculiar circumstances when a sudden fight without premeditation leading to a fatal occurrence emerged. In such a situation, no one can be definite as to which party initiated the attack and which exceeded its right of self defence. It is the learned trial Court who would evaluate the legal worth of material to be produced by the parties.

9.  In view of the above, case of the petitioner falls within the ambit of further inquiry under Section 497(2), Cr.P.C. Resultantly, this application is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only) with two sureties in the like amount to the satisfaction of the learned trial Court.

(R.A.)  Bail allowed

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