Muhammad Yousaf and Muhammad Sajjad petitioners seek post arrest bail in case FIR No, 389/2008 dated 15.9.2008 for offences under Sections 337-A(i)/33-A(ii)/324/34 PPC registered at Police Station Tulamba Tehsil Mian Channu District Khanewal.
2. It is, inter-alia contended that police during the course of investigation has concluded, that the complainant party was aggressor and the petitioners acted while exercising right of self-defence; that inspite of best efforts, cross-version of accused/petitioner's side was not recorded, however, with the indulgence of this Court finally cross-version was recorded; that one person from the side of complainant has already been arrested as the cress-version as put forth by the accused persons was prima facie found as correct; that the petitioners are behind the bars since 2.2.2009 and the case of the petitioners calls for further inquiry on the simple ground that it is yet to be determined as to which of the party was aggressor, which can only be determined during course of trial and that, too, after recording evidence; that there is conflict between the ocular account and the medical report regarding seat of injuries; that none of the offences fall within the prohibitory clause of Section 497 Cr.P.C; that although the allegations against the petitioners is that they caused injury with Kassi blow which admittedly is a sharp edge weapon which is belied by the medical report as in the said report the said injury has been reflected to have been caused by blunt weapon; that four accused were initially nominated in the FIR out of which two have been declared innocent; that the persecution story as put-forth, has not been found true; that learned Courts below primarily declined bail to the petitioners, on the ground that since their petition seeking pre-arrest bail was rejected on merits, therefore, the petition seeking post arrest bail, too, merits dismissal, whereas principles for the grant of pre-arrest bail and post arrest bail are altogether different. Places reliance upon 2006 P.Cr.L.J 522, 2003 P.Cr.L.J 142. In support of his contentions he has also placed reliance on 2006 M LD 446 and 2004 P.Cr.L.J 1767; that allegation against Sajjad is that he made fire shot which hit on the non-vital part of the body i.e legs which is reflective of the fact that intention to kill was lacking; that injuries initially were kept under observation but from the medical report presumption would be that those are simple in nature.
Further places reliance on 2004 P.Cr.L.J 914, 2006 P.Crl.L.J Lahore 1160; that both the petitioners are not required for investigation purpose who are behind the bars since 2.2.2009; thus prays that this petition may be allowed.
3. Conversely, learned counsel for the complainant Mr. Tahir Mehmood Advocate opposes submissions made by learned counsel for the petitioners at bar and submits that earlier petitioners petition seeking pre-arrest bail was declined by this Court vide order dated 2.2.2009 passed in Crl.
Misc. No, 201/B/09 on merits, therefore, this petition, too, merits dismissed on this sole ground; Places reliance on 2005 P.Cr.L.J Page 1797; that since the place of occurrence is located at a short distance from the house of the petitioners, therefore, presumption would be that accused party ' was a aggressor, as their houses are situated at a distance of more than 2 K.M; that occurrence is admitted in the cross-version launched by the accused/petitioners; that cross-version was launched with an unexplained delay of many months without any explanation; that ocular account is fully corroborated by medical evidence; that Shehzad injured has received as many as 16 injuries attributed to Petitioner No 2; that Injuries Nos, 4 to 16 are attributed to Petitioner No, 1; that offence falls within the prohibitory clause of Section 497 Cr.P.C; that sufficient evidence, prima facie, connecting the petitioners with the offence alleged against, is available on the record; that findings of the police, arrived at during the course of investigation wherein it has been observed that complainant party was aggressor have been assailed before this Court through constitutional petition Bearing No, 3973/09; that repetition of fire and seat of injuries, substantially supported the contentions of the complainant that there was intention to kill; that motive part also finds support from the record as the injured PW Shehzad had already got registered a case FIR No 228/06 against the petitioners
4. In response to the query from the Court as to why the injuries suffered by the petitioners' side were not mentioned in the FIR, his answer is that none of the petitioner's side received any injury.
5. Learned DPG submits that in the case diary the police has opined in categorical terms that undoubtedly the petitioners are guilty, however, the complainant party was the aggressor.
6. Arguments heard. Record perused.
7. There is no cavil to the proposition that Ipsi dixit of the police is not binding upon the Court, however, for reaching at a just conclusion that can be taken into consideration. In the case in hand there is a categorical finding to the effect that complainant party was the aggressor. Petitioner's side also suffered injuries, which have been suppressed by the complainant. With the indulgence of this Court, version of the petitioners side was recorded wherein at least one person from the complainant side has been arrested and found guilty. As to which of the party was aggressor and what role was played by either of the party can only be determined during the course of trial and that, too, after recording the evidence. Out of the total four accused named in the FIR, two have been found innocent. The main thrust of argument of Mr. Tahir Mehmood, Advocate, learned counsel for the complainant is that pre-arrest bail petition of the petitioner was dismissed by this Court vide order dated 2.2.2009 passed in Crl. Misc. No, 201-B/2009 and that post arrest bail ought to have been dismissed that post arrest bail petition, thus, is not maintainable being second petition on the same subject matter. I am not inclined to subscribe to this view for the simple reason that principles of grant of post arrest bail and pre-arrest bail are altogether different. Even if an accused makes out a case on merits, still pre-arrest bail can be refused if the element of mala fide or malice on the part of complainant or police are absent therein, whereas, inspite of absence of malice or mala fide, post arrest bail can be allowed on other ground which might be available to an accused, within the parameters Section 497 Cr.P.C. the petitioners are no more required by the police and are behind the bars since 2.2.2009. After hearing learned counsel for the parties and minutely examining the record I am of the considered view that petitioners case calls for further inquiry within the ambit of Section 497 Cr.P.C. Therefore, this petition is allowed. The petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs,1,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.
With these observations, this petition stands disposed of: