' MAZHAR HUSSAIN MINHAS, J.--- Petitioners Ali Khan and Wali Khan in Criminal Miscellaneous No,678/B of 2007 and Wasim. Irshad in Criminal Miscellaneous 1924/B of 2007 have sought post- arrest bail in case F.I.R. No,115, dated 22-11-2006 under sections 302/ 324/148/149, P.P.C. Registered at Police Station Civil Lines Sahiwal. Since both the bail petitions relate to the same F.I.R. Hence are being disposed of by this single order.
2. Prosecution version, in brief, is that on 22-11-2006 at about 8-40 a.m. Liaquat Ali (complainant), his son Rashid, brother Sakhi Sarwar, Atta Hafeez and Shehzad Khan went to Katcheri premises to check about the date of hearing in the case of Rashid. When they reached near the gate of Tehsil Office, they saw accused Farooq Afzal, Nauman Afzal, Zeeshan Afzal, Wasim Irshad, Vicky; Ali Khan and Wali Khan, all armed with .30 bore pistols present there. Accused Farooq Afzal raised Lalkara not to spare Sakhi Sarwar etc. And fired a pistol shot hitting on the left side of latter's head as a result of which he fell down. Zeeshan fired a pistol shot hitting on right eye of injured while fire shot of Nauman Afzal hit him on left calf. Then Wasim Irshad, Vicky, Ali Khan and Wali Khan resorted to indiscriminate firing with their respective weapons as a result of which a passerby, namely, Shehzad son of Faqir Hussain sustained injuries on his upper arm. After the occurrence accused decamped from the spot while making aerial firing. Due to their own firing accused's own companions were also injured. Sakhi Sarwar and Shehzad were shifted to Civil Hospital in a Dala where the former succumbed to the injuries. Motive for the occurrence is that 10/15 days before a fight took place between the parties due to which the accused committed Qatl-e-Amd of Sakhi Sarwar.
3. Learned counsel for the petitioners Ali Khan and Wali Khan has contended that the said petitioners are not attributed any injury to the deceased; that injury of Shehzad is also not specifically attributed to any of them; that the petitioners and their co-accused went to Courts premises to pursue their pre-arrest bail application in case F.I.R. No,360, dated 9-11-2006 under sections 337-H(ii)/452/148/149, P.P.C. At Police Station Fateh Sher Sahiwal, pending in the Court of Mr. Qamar Ijaz, Additional Sessions Judge, Sahiwal, and after the adjournment in the bail application they were attacked by Sakhi Sarwar deceased etc. Near the premises of Police Station Civil Lines and in that occurrence the petitioners sustained injuries which have been suppressed by the prosecution; that case of cross-version under sections 324/148/149, P P.C. Has been registered against the complainant -party on the application of petitioner Wasim Irshad; that any weapon has not been recovered from the petitioners Ali Khan and Wali Khan and that their case calls for further inquiry. Learned counsel for Wasim Irshad has also submitted that case of the said petitioner also requires further probe as he is not attributed any injury to the deceased; injury of Shahzad is not specifically attributed to him; that on his application cross-version has been recorded by the orders of learned Additional Sessions Judge, Sahiwal, under sections 324/148/149, P.P.C. And during the occurrence he has also received the fire-arm injuries.
4. On the other hand learned D.P.-G. Has vehemently opposed the bail applications and has submitted that cross-version of the petitioners has been found false during investigation and the same has been cancelled by the Investigating Officer.
5. Perusal of the record shows that the petitioners are not attributed any injury to Sakhi Sarwar deceased. There is allegation of reckless firing in the generalized form against them, after Sakhi Sarwar had sustained the injuries at the hands of co-accused. Injury on Shehzad son of Faqir Hussain, statedly to be a passerby, is also not attributed to any of them. During the occurrence all the petitioners have sustained firearm injuries but the same have been suppressed by the complainant while recording the F.I.R. And it has been simply stated that due to the firing of accused their own companions were also injured. It is also revealed from the record that on 15-12- 2006 vide Rapt No,10, under the orders of Mr. Qamar Ijaz, Additional Sessions Judge, Sahiwal, on the application of petitioner Wasim Irshad cross-version under sections 324/148/149, P.P.C. Has been recorded. In the cross-version Wasim Irshad has got recorded that on 22-11-2006 they went to the Courts premises in connection with their pre-arrest bail application in case F.I.R. No,360, dated 9-11- 2006 under sections 337-H(ii)/452/148/149, P.P.C. Police Station Fateh Sher. The bail application was adjourned to 28th November, 2006. They found Sakhi Sarwar deceased, Shehzad Hussain, Hassam alias Moon present there armed with weapons. The complainant i.e, Wasim Irshad informed the learned Additional Sessions Judge who directed him to report the matter to the police. Thereupon he along with Ali Khan, Wali Khan and Arslan alias Vicky went to Police Station Civil Lines to lodge the report. At about 8-20 a.m. Near the premises of the Police Station Sakhi Sarwar deceased, Shehzad Hussain son of Faqir Hussain, Jehanzeb, Rana Ata Hafeez, Hassam alias Moon, Hafiz Javaid all armed with pistols and Malik Rizwan armed with hockey attacked them. Shehzad Hussain fired a pistol shot hitting the complainant's right thigh, Hassam alias Moon fired a shot at Ali Khan hitting on his waist while the pistol shot fired by Jehanzeb hit Wali Khan on his right buttock. Malik Rizwan inflicted hockey blow on right hand of Wali Khan, Rana Ata Hafeez fired at Ali Khan hitting on his chest while the fire shot of Hafiz Javaid hit Ali Khan on his right upper arm. According to the complainant Sakhi Sarwar and Shehzad Hussain sustained injuries due to their firing in self- defence. Motive alleged by the complainant is that his brother Nadeem Irshad had got registered a case F.I.R. No,258, dated 4-11-2005 against Jehanzeb etc. Under sections 337-H(ii)/365/452/ 148/149/109, P.P.C. At Police Station Fateh Sher, the challan of which is pending trial before the concerned Court. During the investigation the above cross-version of Wasim Irshad has not found favour with the Investigating Officer, therefore, report under section 173, Cr.P.C. Placing Shehzad Hussain etc. In Column No,2 has been submitted before Court.
6. Although the cross-version lodged by the petitioner Wasim Irshad has been found false during investigation, but it will be finally decided by the trial Court as to version of which party is correct and true. It has been held by the Honourable Supreme Court of Pakistan in different cases that if the versions of the parties arising out of the same occurrence are divergent from each other, such case is covered for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. A reference in this respect may be made to Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCM R 1845. It has been observed in this judgment that in case of counter- versions arising from the same incident, one given by complainant in F.I.R. And the other given by the opposite party, it is almost settled that such cases are covered for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. In such cases, normally, bail is granted on the ground of further inquiry 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 and which party is aggressed against. It is also noteworthy that injured Shehzad Hussain son of Faqir Hussain has not been got medically examined, therefore, his injury is presumed to be of simple nature at the bail stage. In Abdul Aziz v. The State 1996 SCM R 1693 the apex Court allowed bail to the accused who did not cause any injury to the deceased and was attributed a simple injury to the prosecution witness. During investigation and weapon of offence has also not been recovered from the petitioners Ali Khan and Wali Khan, and the I latter still admitted in jail hospital and as per report of Superintendent, Central Jail, he has been operated upon in Mayo Hospital, Lahore, and has again been referred for surgery by the Orthopaedic Surgeon of DHQ Hospital, Sahiwal.
7. Keeping in view all the facts and circumstances of the case, both the applications are allowed and petitioners are ordered to be released on D bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) each with one surety each in the like amount to the satisfaction of the learned trial Court.