IFTIKHAR MUHAMMAD CHAUDHARY, J.---This petition for leave to appeal has been filed against the judgment dated 11th June 2004, passed by Lahore High Court, Lahore whereby Cr. Misc. Application No,3153-B of 2004 filed by petitioners has been dismissed.
2. Petitioner is confined in judicial lockup being accused for the offences under sections 302/324/148/149/427, P.P.C., registered as a cross-version, vide F.I.R. No, 248 of 2003 at Police Station Saddar, Kasur on the complaint of Muhammad Azam. Petitioner applied for bail-' before-arrest before the Sessions Judge Kasur, who vide order dated 31st May, 2003 dismissed his application. As such he was arrested, thereafter, he applied for the grant of post-arrest-bail but the learned Sessions Judge did not subscribe to his view point, as such on 27th December, 2003 turned down his request for his release on bail.Subsequently, petitioner approached the learned High Court for grant of concessions of bail but without any success as vide impugned order/judgment dated 11th June 2004, his bail application has been rejected. As such instant petition for leave to appeal has been filed.
3. Facts giving rise to instant petition are that on 8th May, 2003 Sabir Ali son of Abdul Aziz got registered a case vide F.I.R. No,248, against Abdul Ghani and 20 others (complainant in instant petition) thereinafter referred to as 'complainant] for committing murder of Muhammad Ashraf and causing injuries to his six other relatives including the complainant himself and five others. A dispute between the parties seems to be in respect of cutting 'acacia trees' (Keekar trees) a day before incident. Such act of the complainant was objected to the petitioner's party as the trees were meant to provide facility of shadow to the students of the school. Anyhow despite of objection, the trees were cut down, therefore, the petitioner-party directed the complainant-party not to remove the 'acacia trees' till the arrival of the Management Committee of the school, comprising of Sardar Munir Ahmed Dogar (petitioner) and Sardar Muhammad Sharif Dogar, who will decide the issue. Abdul Ghani and others statedly threatened to the petitioner's party that they will remove/cut down trees with force, as such on the fateful day when the complainant-party brought tractor, Sabir Ali alongwith others went on the site and they saw that they are trying to remove the trees. When they were asked not to do so, they grappled with the complainant and called his companions, whereupon, Jamil Ahmed and others emerged on the site. They were duly armed with rifle arid started firing due to which Muhammad Ashraf was killed as he was fired upon by Jamil Ahmed, which landed on his back and causing injuries to the complainant, Muhammad Sarwar, Abdul Ghafar, Zulfiqar, Saeed Ahmed and Abbas Ali. It is an admitted fact that in this firing Abdul Ghani, Baoo sons of Azam Khan and Shehzad also sustained injuries. Statedly in the meantime, petitioner reached alongwith other villagers on hearing the gun fire reports at the place of incident. He .Shifted Muhammad Ashraf and two others to police post but Muhammad Ashraf succumbed to the injuries. As far as Abdul Ghafar and Abbas Ali are concerned, they were taken by Muhammad Hayat to the District Headquarter Hospital, Kasur who on seeing the condition of the injured referred them to General Hospital, Lahore.
4. Immediately, on the same day, after having incorporated the version of the petitioner's side, Muhammad Azam son of Chao Khan submitted a written application before the S.H.O. Police Station Saddar Kasur, pointing out to him that on the day of incident at about 4.00 p.m. He alongwith his sons Abdul Ghani and Abdul Ghafoor alias Baoo, his brother Rasool Khan and Muhammad Sharif soil of Shatab Khan, was coining to the village from his Poultry Farm in his Tractdr. When they reached near the graveyard of the village, Munir Ahmed and his brother Muhammad Sharif armed with rifles came at the road. Munir Ahmed raised a Lalkara that Master Abdul Ghani etc. Be taught lesson for selling the 'acacia trees'. Simultaneously their companions Muhammad Sarwar and others emerged at the place of incident. They were armed with firearms.
Abdul Ghani tried to intervene, whereupon Muhammad Ahmed fired a rifle shot hiting him at his chest. Sharif also fired, which hit Abdul Ghani on his left shoulder. Ashiq fired at the back chest of Abdul Ghani. Sarwar and Shabbir also fired which hit the left hand and right wrist of Abdul Ghani.
Ghaffar alias Baoo advanced towards his brother. Munir Ahmed fired at his chest and Sabir fired a shot which hit Abdul Ghafoor at his neck. Ghaffar and Sabir also fired at Abdul Ghafoor which hit him at his right 'arm, left hand and left toe. Abdul Ghafoor fell down. Ghaffar fired at him which hit him on the left side of his back chest. Sajjad Ahmed son-in-law of the complainant tried to intervene. He was fired at by Muhammad Arif, hitting him at his armpit. The remaining accused kept on firing and shot fired by Munir Ahmed accused, hit at the backside of neck of Ashraf, his own companion. Other accused sustained injures at the hands of their won companions. Siddique, Muhammad Sharif and Khair Din accused made the complainant, his brother Rasool Khan and their companion Muhammad Sharif to sit in a nearby pit, threatening them that they will be done to death in case they tried to go. The accused left the place of occurrence, while firing. Abdul Ghafoor died at the place of occurrence. Abdul Ghani son of complainant died subsequently in the Hospital.
5. After having registered both the versions, the investigation of the case was carried out and meanwhile after passing of the order by the Additional Sessions Judge, Kasur on 31st May 2003.
Petitioner was arrested on the same day. During course of investigation out of 18 persons, nominated by Muhammad Azam, 15 have been declared absconder whereas three accused including the petitioners have been arrested.
6. Learned counsel appearing for the petitioner contended that:---
(a) Petitioner has been falsely involved in the commission of the offence being the notable of his family otherwise, 132 persons were ready to give statement before the police that he was not present at the place of incident.
(b) Petitioner has made out a case of further inquiry in view of counter version of the incident, therefore, he is entitled for grant of bail.
(c) No incriminating evidence is available on record to substantiate that he has fired upon the deceased Abdul Ghafoor and caused injuries to the party-men of the opponent side.
(d) No incriminating-empty of the .222 bore was recovered from the place of incident as according to prosecution case, he had fired with such weapon of caliber. Inasmuch as, during the period when the petitioner remained in custody no incriminating article was recovered on his potation.
(e) Petitioner is entitled to be released on bail by extending him benefit of doubt till the time it is not ascertained as to whether he has participated in the commission of the offence or not.
(f) Petitioner has also made out a case for grant of bail because from the opponent side, three persons have already been released on bail. In support of his contention he has relied upon the judgments reported as Manzoor v. The State (PLD 1972 SC 81), Ghulam Rasool v. Administrator Auqaf (1976 SCM R 381), Anjuman Masjid v.
Muhammad Binhori (PLD 1990 SC 753), Shohaib Mehmood Butt v. Iftkhar-ul-Haq (1996 SCM R 1845), Ibrahim v.The State (1997 PCr.LJ 762) and Nazaro v.The State (2003 PCr.LJ 414).
7. On the other hand learned Assistant Advocate-General contended that:--
(i) Petitioner has been nominated in promptly lodged counter version being responsible for causing fatal shots on the chest of Abdul Ghani deceased and on the person of Abdul Ghaffoor Baoo who subsequently succumbed to the injuries, therefore, the contents of F.I.R. Have been fully corroborated by medical evidence as well as through witnesses, whose statements were recorded, during cross-examination.
(ii) Petitioner's presence at the best cannot be denied because as per the counter version of the accused-side he reached at the spot on hearing the report of firing alongwith other villagers, whereas fact is that he fully participated in the commission of the offence, during course whereof two persons were done to death from the side of complainant Muhammad Azam and one person from the side of Muhammad Ashraf and statedly said Muhammad Ashraf is responsible for causing injuries on his own party.
(iii) No case of further inquiry is made out in of incriminating evidence available on record, therefore, he is not entitled for bail.
8. We have heard the learned counsel for petitioner and have also gone through the material so collected during investigation to ascertain as to whether there exists any reasonable ground to, prima facie, hold that petitioner is entitled for the grant of bail.
9. It is to be noted that in the challan, version of the prosecution is that petitioner fired from the distance of 250 feet which-has not caused injuries, to any member of the opposite side nor is responsible for the commission of the offence but such opinion of the police ipso dixit is not acceptable even at the bail stage, as it has been held in the case of Manzoor (ibid). Contrary to it P.Ws. Muhammad Azam and Muhammad Sharif had categorically held him responsible for causing fatal injuries on the person of Abdul Ghani and Abdul Ghafoor deceased, therefore, no importance can obviously be attached to the police for the time being.
10. It may be noted that now it is a settled principle of law that if an accused succeeds in making out a case of further inquiry, he is entitled for grant of-bail because invariably such plea is available in every case. Reference in this behalf may be made to the case of Asmatullah Khan v.
Bazi Khan (PLD 1988 SC 621) and Nasreen v. Fayyaz Khan (PLD 1991 SC 412). Relevant para. From the latter judgment is reproduced hereinbelow:-- "Lastly the question of, prima facie, opinion about the guilt of the accused under subsection (1) of section 497 Cr.P.C. Or subsection (2) thereof has not been properly examined in the impugned order. The easy contrivance of "the further inquiry" against positive rulings of this Court explaining the provisions of section 497(2), Cr.P.C. Was pressed into service. It has been observed time and again that there would hardly he a case which would not require "further inquiry" therefore, this element, by itself, is no ground for granting bail under subsection (2) of section 497, Cr.P.C. Such orders are, on their very face illegal which do not fulfil the second condition regarding tentative opinion, about the prima facie guilt or otherwise of the accused.'
With reference to above principle, this Court in the case of Shohaib Mehmood Butt (ibid), which has been relied upon by the learned counsel for petitioner, has held that every hypothetical question, which can be imagined, would not mean that it is a case of further inquiry simply for the reason that it can be answered by the Court subsequently after evaluation of evidence. In this authority it was further held that broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C.
Is that there are sufficient grounds for further inquiry 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. Similar view has been expressed by this Court in the case of Anjuman Masjid (ibid).
11.Applying the above principle on the facts and circumstances of the case in hand, prima facie, it can be held that if the statements of P.Ws. Muhammad Azam and Muhammad Sharif are accepted by the trial Court it would result in conviction of the petitioner, therefore, instead of embarking upon the facts of the case in detail, lest it may cause prejudice to the case of any of the parties, suffice to observe that on the given facts and circumstances of the- case, the petitioner is not entitled, to be released on bail on the ground of "further inquiry".
11. Now turning towards the argument of the learned counsel' relating to grant of bail to petitioner in view of the counter version of the same incident in which admittedly, two persons had died from the side of complainant (opponent) besides causing injuries to four persons and one person had died from petitioner's side alongwith two injured persons, therefore, with this background, it would be essential to examine whether there-were reasonable grounds to enlarge the petitioner on bail.
Normally, in such situation, bail can be granted as it has been held in Shohaib Mehmood Butt's case. (ibid) but at the same time it is also one of the duties of the Courts- to place both the versions in juxta position to ascertain as to which one, prima facie, is nearer to truth and on forming its tentative opinion. Bail can be granted to the accused, if it is found that the version advanced on his behalf is nearer to truth. However, such findings would be of tentative in nature. It is to be borne in mind that the petitioner is accused for allegedly committing the murder non-bailable offence therefore, he, as a matter of right, cannot be released on bail. A careful study of both the versions from the police record, which has been made available for our perusal, prima facie, suggests involvement of the petitioner, in view of the statements o P.Ws. Muhammad Azam and Muhammad Sharif. The record further reveals that 132 persons were ready to make the statements that petitioner was not present at the site but no such statement was recorded. Even otherwise, this could be the defence of the petitioner, which, of course, would be considered, if put forward, later on by the trial Court, but at this stage, by considering both the versions in juxta position, presence of the petitioner at the time of incident cannot be overruled.
12. As far as non-recovery of incriminating weapons at the behest of petitioner is concerned, it bas got no significance at this stage as because after the commission of the offence, immediate arrest of the petitioner could not take place as he was arrested on 31st May, 2003, after about three weeks from the date of incident. Similarly non-recovery of .222 rifle empties, with which allegedly as per the "zimnees', he has fired, cannot be considered important to enlarge him on bail because the trial Court would answer this question after evaluating the evidence.
13. After having discussed the above aspect of the case, we areprima facie, of the opinion that there is no doubt in the prosecution case for the purpose of releasing the petitioner on bail by extending its benefit to him, in view of the law laid down by this Court in the case of Manzoor (ibid).
As far as other authorities cited by the learned counsel are concerned, they need not be discussed, after having taken into consideration the principle laid down by this Court in the judgment noted hereinabove. Thus for the foregoing reasons, we see no force in this petition as such same is dismissed and leave declined.