'MANZOOR AHMAD MALIK, J.---The petitioner seeks post-arrest bail in case F.I.R. No,237 dated 3-9- 2008 registered under sections 302/324/148/149, P.P.C. At Police Station Kakrali, District Gujrat. The allegation against the petitioner is that he along with co-accused while armed with fire-arms committed murder of Zulfiqar Ahmad and made murderous assault upon Muhammad Rafique, sons of the complainant.
2. Learned counsel for the petitioner in support of this petition contends that the occurrence took place in the house of the petitioner, that two persons from the petitioner's side i.e, Muhammad Sadiq, father of the petitioner and the petitioner himself were injured in this case and they both were got medically examined by the police on the same day i.e, 3-9-2008; that they both received two injuries each, one on their left thighs and one on their heads; the injuries on the thighs of both the injured were caused by fire-arm weapon whereas, injuries on the heads of both were caused by blunt means and this fact has, admittedly been suppressed in the F.I.R.; that the cross version of the petitioner's side was not recorded by the police despite the fact that the injured were got medically examined by the police and thereafter, the father of the petitioner instituted a private complaint which is pending before the learned Addl. Sessions Judge, Kharian and the accused persons mentioned in said private complaint have been summoned vide order dated 25-5-2009 by the learned Addl. Sessions Judge Kharian; that the complainant side has also filed the private complaint which is also pending in the Court of the learned Additional District Judge; Kharian; that two persons were injured from the petitioner's side whereas, the deceased received only one fire shot and the other injured sustained injuries by blunt means, as per MLRs; that the version of the petitioner's side is that in fact the fire shot by Rafique, brother of the deceased hit the deceased and this is supported from the fact that there is blackening around the wound of Zulfiqar deceased.
Learned counsel lastly contends that in the circumstances, the case of the petitioner is one of further inquiry within the ambit of subsection (2) of section 497, Cr.P.C. And that this Court while allowing bail to the co-accused of the petitioner namely, Muhammad Rafique (Cr1. Miscellaneous No,11887-B of 2009) has already observed that it is a case of two versions, therefore, the petitioner is entitled to the concession as he is behind the bars for the last about eighteen months.
3. Learned Deputy Prosecutor-General assisted by the learned counsel for the complainant opposes this petition on the ground that two persons were injured in this occurrence from the petitioner's side and this fact is mentioned in the complaint instituted by the complainant subsequent to the registration of the F.I.R; that Rafique injured of F.I.R. Was medically examined on 3-9-2008 at 8-55 p.m. Whereas, the petitioner and his father were examined on the same day at 4-45 pm; that the petitioner maneuvred forged medical certificate; that the occurrence never took place in the house of the petitioner and factually it took place in the street where the house of the petitioner is situated; that as a matter of fact, it was pre-planned murder; that the recovery of weapon has been effected from the petitioner and the empty recovered from the place of occurrence matched with that weapon; that the petitioner is principal accused as he inflicted fire- arm injury on the vital part of the deceased; that the offence does fall within the prohibitory clause of section 497, Cr.P.C; that the charge has been framed in this case on 22-7-2009; that the complaint filed by the petitioner's side is, as a matter of fact, a counterblast.
4. I have heard the arguments of both the sides.
5. In this case one person died from the complainant side and received one fire-arm injury whereas, other injured namely Rafique received three injuries and these were caused by blunt means, as per MLR. On the other hand, two persons namely, Muhammad Sadiq, father of the petitioner and Muhammad Hanif, the petitioner, were injured from the petitioner's side. They both received two injuries each on their thighs and heads. Injuries on the thighs of both the injured, as per MLRs are caused by fire-arm weapon whereas, injuries on their heads, as per MLRs are caused by blunt means. Both these persons were medically examined on the same day i.e, 3-9-2008.
Learned counsel for the complainant has vehemently contended that medical reports were maneuvred. On this, a specific question was asked from the learned counsel for the complainant as to whether said reports of the doctor were challenged before any higher authority? The answer was in positive but the learned counsel for the complainant showed his ignorance about the report of Standing Medical Board. However, the learned DPG; after perusing the record and on instructions from the police officer present in Court states that the Standing Medical Board agreed with the findings given by the doctor who initially examined the petitioner and his father. Admittedly, the injured (from petitioner's side) were examined on the same day i.e, 3-9-2008 and that too through the police. These injuries have been suppressed in the F.I.R., therefore, it is a case of two versions. As far as commencement of trial is concerned, this Court has already held while allowing bail to the co-accused of the petitioner namely, Muhammad Rafique (Cr1. Miscellaneous. No,11887-B of 2009) that it is settled proposition of law that if the petitioner is otherwise entitled to the concession of bail then this cannot be withheld on the ground that the trial has commenced. Reliance was placed on the case of "Muhammad Ismail v. Muhammad Rafique and another" PLD 1989 SC 585 and "Fayyaz Ahmad v. The State" 1997 PCr.LJ 847. An important point in this case is that the charge was framed on 22-7-2009 and so far, even as per learned counsel for the complainant, the statements of only two prosecution witnesses, who are formal in nature, have B been recorded. A private complaint has been filed by the petitioner's side wherein, the complainant party of this case has been summoned and the proceedings are now being conducted in the complaint case instituted by the complainant of this case. Another important point is that, as per petitioner, the occurrence took place in his house but as per learned counsel for the complainant, the occurrence took place in the street but the fact remains that this occurrence took place near the house of the petitioner. I will not comment much on the merits of the case lest it may prejudice the case of either party before the learned trial Court. The question as to which party was aggressor and which party was aggressed upon is to be determined by the learned trial Court after recording of the evidence of the parties. Admittedly, this is a case of two versions, one set out in the F.I.R. And C the other in the complaint which was subsequently instituted by the father of the petitioner, which brings the case of the petitioner within the ambit of subsection (2) of section 497, Cr.P.C. Reliance is placed on the case of "Shoaib Mehmood Butt v. Iftikhar Ul Haq and 3 others" 1996 SCM R 1845 wherein, the Honourable Supreme Court of Pakistan, at page 1854, was pleased to observe as under:-- "16. In case of the counter-versions arising from the same incident, one given by complainant in F.I.R, and the other given by the opposite- party. Case-law is almost settled that such cases are covered for grant of bail on the ground of further enquiry 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 counterversions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed upon. 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 v. Hashim Ali and others 1972 SCM R 682."
6. In the above circumstances, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,1,00,000 (rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.
7. However, it is made clear that the above observations/findings are only tentative in nature and relevant only for the purpose of bail and shall not influence the learned trial Court during the trial.