Petitioner Muhammad Aamir seeks post arrest bail in case FIR No, 1047/08 dated 8.10.2008, under Sections 148, 149, 302 PPC, Police Station Factory Area, Faisalabad. The precise allegation against the petitioner, as stated in the FIR, is that on the fateful day and time, the complainant alongwith Nadeem and Arshad were sitting on a cot when accused Abdul Khaliq armed with a gun, Faisal @ Kala armed with a gun, Aamir ( petitioner) armed with a gun, Qisar armed with a gun, Muzammil armed with a pistol, Babar armed with a pistol, Iftikhar armed with a gun and Tariq armed with a soda-water bottle reached there. It was further alleged that co-accused Tariq threw bottle hitting at the neck of Nadeem who after having sustained an injury fell down on the ground. Muzammil gave a pistol Butt blow on the head of Nadeem whereas Aamir(petitioner) made a straight fire with his gun hitting Bashir Ahmad, real father of the complainant, which hit on the lower side of his belly while rest of the co-accused are attributed indiscriminate firing. Nadeem and Bashir were taken to hospital but complainant's father Bashir succumbed to the injuries in the hospital.
2. Learned counsel for the petitioner Syed Ihtesham Qadir Shah, Advocate, in support of this bail petition, contends that the petitioner has falsely been involved in this case on account of mala fide of the complainant and the local police; that it is a case of two versions first was given in the FIR and the second recorded on the statement of Tajammil Hussain as cross version; that in all there are eight accused persons out of whom seven have been declared innocent during the course of investigation; that actually the petitioner acted in self-defence to protect his real brother; that three persons from the petitioner side also received injuries which factum is supported by their respective MLRs; that from the complainant side, only Bashir died while injury of Nadeem is attributed to co-accused Tariq who has already been allowed bail by the learned trial Court; that the whole family of the petitioner has been implicated in the case just to widen the net; that the complainant has also filed a private complaint in which petitioner and others have been summoned; that the injury attributed to the petitioner is on non-vital part of the deceased which was not repeated; that there is a contradiction between the ocular account and the medical evidence qua seat of injury; that the complainant party has suppressed injuries on the petitioner's side; that the petitioner is behind the bars since 27.11.2008 and there is no likelihood of conclusion of the challan case in the near future; that actually, complainant side was the aggressor one; that during the course of investigation, the police has opined that the petitioner fired in order to save the life of his brother Tajammil Hussain, who was injured with fire-arm and that in the afore- referred circumstances petitioner is entitled to the concession of bail after arrest from this Court being a case one of "further inquiry" falling within the ambit of sub-section(2) to Section 497 Cr.P.C.
He has placed reliance on. Shoaib Mehmood Butt vs. Iftikhar-ul-Haq and 3 others (1996 SCM R 1845) to contend that in a case of two versions i,e, one set up by the prosecution in the FIR and the other by the accused side in the shape of cross version qua the same incident such case becomes one of further inquiry and Amjad and another vs. The State (1982 SCM R 955) to argue that if in a murder case, the version given in the FIR is found to be false with regard to majority of accused already allowed bail then the co-accused, who was attributed an injury on the leg of the deceased, was also entitled to bail.
3. The learned DPG contends that the petitioner is named in the FIR with a specific role of causing a fatal shot which resulted into the death of the deceased which shows that he fully participated in the occurrence; that recovery of fire-arm has been affected from the petitioner and that he is not entitled to the concession of bail.
4. While opposing the bail petition, learned counsel for the complainant Mr. Muhammad Sohail Dar, Advocate, contends that as a matter of fact there were four different occurrences which took place on different times and the allegedly injured persons from the petitioner's side never received injuries in the occurrence in which Bashir deceased lost his life; that there is only one fire-arm injury on the person of the said deceased which is specifically attributed to the petitioner; that the question whether the said fire was made in the exercise of right of self defence or not, can only be gone into during the trial and the burden rests on the shoulder of the petitioner to prove the same which exercise is not permissible in. a bail petition as any finding at this stage would prejudice case of either side before the learned trial Court; that the cross-version lodged by Tajammil Hussain has been found as false; that copies of statements have been distributed to the accused and now the case is fixed for framing of charge and while placing reliance on 2002 P.Cr.LJ. 1483 learned counsel contends that mere recording of cross-version does not entitle the accused to bail unless it is found as genuine.
5. Arguments heard at length. Record perused.
6. The allegatior against the petitioner, as contained in the FIR, is that he fired a shot with his gun which hit on the thigh of the deceased. The learned DPG, on instructions from the Police Officer present in Court and after going through the record, confirms that three persons from the petitioner side also received injuries one of whom suffered a fire-arm injury; that those injured persons were medically examined on the same day and their cross version was recorded on 31.10.2008; that all the accused of FIR, except the petitioner Aamir, have been declared' innocent during the course of investigation; that vide Zimini No, 26 dated 29.11.2008, police has opined that the petitioner fired a shot in order to save his brother Tajammil who had become injured with a fire-arm.
7. Admittedly, in this case three persons from the petitioner's side also received injuries one of whom received a fire-arm injury. They were medically examined on the same day i,e, the day of occurrence which factum finds support from their MLRs available on the record. Cross-version from petitioner's side was also recorded by the police and the police record is suggestive of the fact that the same was not found incorrect during the course of investigation as argued by the learned counsel for the complainant. The factum of receipt of injuries by those persons was suppressed by the complainant in the FIR which, by itself, is a factor goes in favour of the petitioner. It is yet to be seen by the learned trial Court after a regular trial as to which party was the aggressor and which party was aggressed upon. This can only be decided by the learned trial Court after elaborate evaluation of the evidence recorded by it. The petitioner is behind the bars for the last about one year. The petitioner is attributed only one fire-arm injury and the police has also opined that the petitioner fired the said shot in order to save the life of his real brother Tajammil. Apart from above, in all there are eight accused persons named in the FIR out of whom seven have been declared innocent during the course of investigation by the police. Although opinion of the police is not binding on the Courts yet it can be taken into consideration as a relevant circumstance for a just decision of a bail petition. The precedent case law relied upon by the learned counsel for the petitioner i,e, Shoaib Mehmood Butt vs. Iftikhar-ul-Haq and 3 others (1996 SCM R 1845) and Amjad and another vs. The State (1982 SCM R 955), has force. In Shoaib Mehmood Butt's case (supra), the Hon'ble Supreme Court of Pakistan, at page 1854, was pleased to observe 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 Want 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 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 and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmad (1976 SCM R 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 u. Hashim Ali and others (1972 SCM R 682)."
8. In the said case (supra), while dismissing petition for cancellation of bail after arrest, allowed by the High Court to the accused/respondent on the ground of further inquiry, the Hon'ble Apex Court Relied upon Ahmad v. Sheru (1979 SCM R 526) and Tariq Bashir vs. State (PLD 1995 SC 34).
9. The judgment referred to by the learned counsel for the petitioner in Amjad and another vs. The State (1982 SCM R 955), is also relevant as in that case, the contention raised on behalf of the petitioner (of that case) was that no sanctity can be attached to the version given in the FIR, in view of the fact that it was found to be false with regard to the majority of the accused. The question of grant of bail in a counter case came up for consideration before the Hon'ble Apex Court in Noor Muhammad vs. The State (2009 SCM R 324), the accused was allowed bail on the ground that it was yet to be determined by the learned trial Court as to which party was the aggressor.
10. In the afore-referred circumstances of the case, this Court is of the prima-facie view, that the petitioner has made out a case one of further inquiry falling within the ambit of sub-section (2) of Section 497 Cr.P.C., hence, this petition is allowed and the petitioner is admitted, to bail subject to his furnishing bail bonds in the sum of Rs,2,00,000/- (Rupees two lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
11.However, it made clear that the above observations/findings are only tentative in nature and relevant only for the purpose of bail, therefore, shall not influence the learned trial Court during the trial.