ORDER ASIF SAEED KHAN KHOSA, J. - Through this petition Muhammad Shahid and Muhammad Afzal petitioners have sought pre-arrest bail in case F.I.R. No. 711 registered at Police Station Badami Bagh, Lahore on 13 8.2007 in respect of offences under Section 337-A (i) and 337-A(ii), P.P.C. Earlier on the petitioners had approached the Court of Session, Lahore for the same relief but their application in that respect was dismissed by the learned Additional Sessions Judge/ Lahore vide order dated 22.8.2007. Hence, the present petition before this Court.
2. After hearing the learned -counsel' for the parties and going through the record it has been noticed by me that according to the F.I.R. The petitioners and their two co-accused had caused injuries not only to the complainant's brother namely Muhammad Naeem but. At so to Muhammad Naveed complainant himself but the record of investigation of this case, however, shows that it was only, Muhammad Naeem PW who was got medically examined for his injuries and no Medico- legal Certificate is available on the record pertaining to the injuries allegedly sustained by the complainant himself. It has also been observed by me that according to the F.I.R. All the four culprits, including the present petitioners, had participated in causing of injuries to Muhammad Naeem PW but the Medicolegal Certificate pertaining to the injuries sustained by Muhammad Naeem PW clearly shows that the said victim had sustained only three injuries on his body. It is, thus, evident that one of the four culprits had not caused any injury to the said victim and it is not decipherable from the entire record as to who was that person out of the four culprits who .Had not caused any injury to the said victim. The record further shows that on the very day of the alleged occurrence and even prior to registration of the F.I.R. Both the present petitioners had also been got medically examined for their own injuries by the local police itself. The Medico-legal Certificates pertaining to the present petitioners show that Muhammad Shahid petitioner had sustained three injuries out of which one was on his left ear and Muhammad Afzal petitioner had also sustained three injuries out of which one was of his skull and another on his neck. Unfortunately sustaining of those six injuries by the present petitioners had never been explained by the complainant in the F.I.R. Lodged by him. I have been informed that a cross-version of the same incident advanced by the accused party has already been registered by the local police after receiving a direction in that regard issued by an ex-officio Justice of the Peace. The said cross-version of the accused party is yet to be investigated by the local police. Suppression of the injuries of the petitioners by the complainant party prima facie smacks of mala fide on its part and failure of the local police to record the cross-version of the accused party prior to the intervention of the ex-officio Justice of the Peace hints at ulterior motives on the part of the police.
3. It is already been observed above that four culprits. Have been saddled with the responsibility of causing three injuries to Muhammad Naeem PW and it is hot decipherable as to which of the culprits, including the present petitioners, had not caused any injury to the said victim. It has also been found by me to be quite intriguing that one of the offences, allegedly committed by the petitioners and their co-accused, .i.e.: ah offence under Section 337-A(in, P.P.C. Is bailable whereas the other offence allegedly committed by the culprits, i.e. An offence under Section 337-A(ii), P.P.C.
Is non-bailable and it is not possible in this case to specify as to which one of the culprits, including the present petitioners, was responsible for commission of the bailable offence and which one of them was responsible for commission of the non-bailable offence. In the F.I.R. The allegation against the petitioners and their co-accused has been levelled in generalized and collective terms and no particular injury has been attributed to any of the culprits. In these circumstances I have found it to be well-nigh impossible to determine with any degree of certainly as to whether the present petitioners were responsible for commission of the bailable offence or the non-bailable offence and, thus, the benefit in this case has to be extended to the petitioners for the purpose of the present petition for bail. In the case of a bailable offence the accused person is entitled to be admitted to bail as of right. Section 34, P.P.C. Has not so far been invoked in the F.I.R. Registered in this case and the Honorables Supreme Court of Pakistan had held in the case of Ch. Muhammad Anwar Samma, etc. v. The State (1976 SGMR 168) that a penal provision not formally standing invoked in a criminal case , cannot be considered by a Court for the purposes of deciding an application for bail. The Police Officer present with the record has confirmed the fact that the petitioners have already joined the investigation. The cross-version of the incident advanced by the- accused party is. Yet to be investigated by the local police and, therefore, it is still to be determined as to which party was in fact the aggressor.
4. For what. Has been discussed above this petition is accepted and the ad-interim pre-arrest bail already allowed to the petitioners by this Court vide order dated 28.8.2007 is hereby confirmed subject to furnishing of fresh bail bonds by the petitioners in the sum of Rs. 50,000/- (Rupes^ fifty thousand only) each with one surety each in the like amount to the Satisfaction of the Area Magistrate of Police Station Badami Bagh, Lahore within a period of two weeks from today.