' AQEEL AHMED ABBASI, J.---F.I.R. No,411 of 2008 was registered on the basis of statement under section 154, Cr.P.C. Of complainant namely, Farhad Ali son of Khewa Din on 28-12-2008 at 2045 hours at Police Station Solider Bazar, Karachi under section 302/34, P.P.C. The contents of F.I.R. Are reproduced hereunder for the sake of brevity and relevance.
"Today I, S.-I. Mian Khan, after the recording of the statement under section 154, Cr.P.C. As per report No,52 at 2115 hours of RoLnamcha aam Soldier Bazaar, Karachi, I came back from Civil Hospital. The statement is reproduced herein under. From Civil Hospital, Karachi on 28-12-2008 at 2230 hours statement under section 154, Cr.P.C., I Farhad Ali s/o Khewa Din aged 28 years caste Pathan, R/o House No,11/12, Soldier Bazaar No,1, Karachi Phone No,0333-3522459 stated upon inquiry that I reside at the above-mentioned address along with my family and run a Karyana shop. My younger sister namely Zainab Bibi got married with Mutalib Khan s/o Naimat Khan one and half years ago, they are our relatives. My sister has come at our house for 3/4 days due to dispute with her husband.
Naimat Khan was also coming at our house for taking her daughter in law from 3/4 days, but we were not sending her. Today an 28-12-2008 in evening time at 8-00 hours Naimat Khan came at our house and called brother Irfan alias Kali outside from the house, said that I want to talk with you about Zainab, my brother came out from the house and while talking with Naimat Khan they started to move towards Ibrahim Shah Shrine. I and my elder brother Afsar Ali were following them, when my brother Irfan Ali & Naimat Khan reached on the road of Ibrahim Shah Shrine then we saw that our brother-in-law Mutalib Khan and Haroon son of Fazal already present there grappled him. Meanwhile, Naimat Khan took out pistol and with intention to kill started firing upon my brother Irfan Ali, as a result my brother received injuries and fell down. It was quarter to 9, I and my brother Afsar after running took up our brother and they also fled away while having seeing us, meanwhile, the mobile of the Soldier Bazaar Police arrived, who chased the accused persons and I took my brother through private Suzuki to the Civil Hospital, who died on the way. Now I came to know that police has arrested Naimat Khan, and his son Mutalib Khan, ,however their companion Haroon s/o Fazal Khan fled away successfully. My claim is against three accused persons Naimat Khan s/o Haji Ali Akbar, Mutalib Khan s/o Naimat Khan and Haroon s/o Fazal Khan that due to personal grudge with common intention while making firing with fire- arm for murder, action may be taken. This is my statement heard and it is correct."
2. After investigation, the challan was submitted showing accused Haroon as absconder, whereas accused persons namely, Naimat and Mutalib Khan are behind the bars. The present applicant along with accused Mutalib Khan moved bail application in Sessions Case No,50 of 2008 before the learned IInd Additional District Judge (East) Karachi, who vide his combined order dated 7-9-2009 has declined bail to both the co-accused. Being seriously aggrieved and dissatisfied with such order, the present applicant/accused namely, Naimat Khan has filed this present bail application.
3. The learned counsel for the applicant has submitted that this is a case of counter version as a Criminal Complaint No,1051 of 2009 has been filed by the accused persons against the complainant party which is pending before the IInd Additional Sessions Judge (East) Karachi. It is stated that while dismissing the bail application, the learned Ilnd Additional District & Sessions Judge (East) Karachi did not take into account this very relevant aspect of the matter. Learned counsel referred to the interrogation statement of the applicant/accused namely Naimat Khan as well as statement of co-accused Mutalib Khan. He also referred to the statement of co-accused Mutalib Khan under section 200, Cr.P.C. Recorded by the 'Ind Additional District Judge Karachi East on 9-6-2009. The same is reproduced hereunder for the sake of brevity and relevance.
"EXAMINATION-IN-CHIEF TO MR. M.A. KAZI, Advocate ' On 28-12-2008 at about 8-15 p.m. I went to Ibrahim Shah Bukhari Mosque near Soldier Bazar No,1 to offer the Isha Prayer where I met with Syed Muhammad Shahid Iqbal and Syed Muzaffar Shah and extent Salam Dua. In the presence of these persons I left the Mosque and from there at some distance I saw deceased Irfan Ali alias Kali, accused Farhad Ali and accused Ahmed Ali, who were going on a motorcycle bearing No,KDD-9139. They were armed with revolvers, and threatened me that they will not spare me today, because my father has failed to give Rs.1,00,000 to them. They also started abusing me and tried to drag me on the show of revolvers to Warli Road, beside the Ibrahim Shah Mosque, with intention to commit my murder. Accused Farhad made fire from his revolver at me from near distance, which hit at the dorsal aspect of my right hand, while accused Afsar Ali fired at me from near distance which hit to my right little finger. The deceased Irfan Ali alias Kali also fired at me from near distance towards my head, but I. Dipped down, as such his fire was missed. In order to save my life from the hands of those persons I also made a fire with the licensed pistol, which is in the name of my father, and the fire was hit to Irfan alias Kali mastoid zone behind left ear and on the mid of the auxiliary range. On seeing Irfan Ali alias Kali injured condition the accused persons fled away leaving the motorcycle at the spot. On hearing the firing report so many persons gathered there including Syed Muhammad Shahid Iqbal and Syed Muzaffar Shah. I produce the copy of licence of the pistol as Exh. 1/A. In order to save my life I took the motorcycle No,KDD-9139 of the deceased Irfan Ali alias Kali and rushed to my father's shop and informed him the incident. In the meanwhile, police mobile of Soldier Bazar Police Station came and arrested me and my father and recovered the said licensed pistol of my father from me and also recovered the licence from my father. The police also recovered cash amount of Rs.96,970 from my father. Police prepared such Mashirnama of arrest. I produce the copy of Mashirnama at Exh.1/B. Thereafter police brought to J.P.M.C. For treatment I produce the medical certificate at Exh.1/C and 1/D."
4. The learned counsel further stated that the present applicant was not available at the site of alleged incidence, nor recovery of weapon has been made from the present applicant, only Rs.96,970, one mobile phone and pistol arm licence No,138-I has been recovered. The learned counsel states that admittedly, pistol was recovered from accused namely Mutalib Khan on the date of incident. He has also referred to the Station Diary Report No,52 dated 28-12-2008 at 2300 hours. It has been argued that admittedly as per the police story they arrested the son of applicant namely Mutalib Khan in injured condition, who was referred to JPMC and the M.L.O. Namely, Dr. Pardeep Kumar examined him and following injuries on the person Mutalib Khan were reported:--
(1) History of: Fire-arm as alleged
(2) Particulars of injury of symptoms in case of poisoning: General Condition Conscious
(1) Fire-arm injury 0.5 cm in diameter inverted margin on dorsal aspect of right hand (wound of entry).
(2) Fire-arm injury 1 cm in diameter averted margins right ring finger of right hand (wound of exit).
(3) Fire-arm injury 0.5 cm in diameter inverted margins on right little finger medially blackening positive wound of entry.
(4) Fire-arm injury 1 cm in diameter averted margins in right little finger latterly (wound of exit).
5. According to the learned counsel for the applicant, the background of the incidence is that son of the applicant namely, Mutalib Khan was married with Mst. Zainab daughter of one Khewa Din about two years prior to the alleged incidence. The applicant came to know after sometime that the brothers of Mst. Zainab namely Farhad Ali, Irfan Ali alias Kali and Afsar Ali deal in "Narcotic and Fake Currency" business. One of the brothers namely, Irfan Ali alias Kali started blackmailing, extorting and demanding money from the applicant. On the fateful day also Irfan Ali alias Kali approached the applicant with demand of Rs.1,00,000, on his refusal after about one hour, Irfan Ali alias Kali and his two brothers namely, Farhad Ali and Afsar Ali arrived at the shop of the applicant and threatened the applicant that unless Rs.1,00,000 is paid to him on 28-12-2009 before 8-30 p.m., he will face dire consequences. Due to fear, the applicant arranged Rs.96,970 with the help of his relatives and friends and kept the same ready to be delivered to Irfan Ali alias Kali. That on 28-12- 2009 at 8-00 p.m., applicant's son Mutalib Khan left the shop for the Ibrahim Shah Bukhari Mosque for offering the Isha prayers. That at about 9-00 p.m., when the applicant was present at his shop, his son Mutalib Khan returned on motorcycle in an injured condition as blood was oozing rapidly from his hands, who informed the applicant that at about 8-15 p.m., when he came out from the mosque after offering prayers found his brother-in-law namely, Irfan Ali alias Kali, his brother Farhad Ali and Afsar Ali standing on motorcycle bearing No,KDD-9139, they were holding Revolvers in their hands. Thereafter, Farhad Ali made fire with intention to kill Mutalib Khan, which hit him on his left hand. Similarly, Afsar Ali also fired with Revolver at Mutalib Khan, which hit him at the right hand. Irfan Ali alias Kali fired with his Revolver at Mutalib Khan targeting at his head, but Mutalib Khan dipped down and saved himself. Mutalib Khan in self-defence also fired towards the three assailants which hit Irfan Ali alias Kali. According to the learned counsel this is a clear cut case of counter version. He further submitted that the applicant and his son could have lodged an F.I.R. Of the incidence but the complainant party being the notorious persons having exercised influence over the police managed to get an F.I.R. Registered against the applicant, which resulted in the anomaly that applicant and his son were &rested even prior to lodging of F.I.R.
6. He further argued that the complainant party did not approach the Court with clean hands as they concealed the fact of cross firing between the complainant and accused party, as such the son of the present applicant was injured. The learned counsel also referred to section 96 of P.P.C., which clearly stipulates as to under what circumstances a person cannot be held responsible to have committed an act in self-defence. It was finally argued that this is a fit case for the grant of bail to the present applicant. In support of his arguments learned counsel has placed reliance on the following cases:-
(i) Ali Akbar v. Rehan and others (Cr. Petition No,90-K of 2004), it has been held by the Honourable Supreme Court as under:-- "It also appears that the petitioner has filed a Direct Complaint in which the charge was framed on 13-8-2004 and the said Direct Complaint would proceed in the first instance and thereafter the State case, vide F.I.R., would proceed in view of the law laid down by this Court in the case of PLD 1966 SC 708."
(ii) Muhammad Ashraf v. The State 1981 PCr.LJ 704. In this case it has been observed as under:-- "The private complaint admittedly relates to a charge which is cognizable and non- compoundable, therefore, in view of the latest legal position there is no distinction between the private complaint and a registered case pertaining to cognizable or non-compoundable offence.
These factors provide a ground to hold that there is prima facie probability that the counter version has also some truth in it."
(iii) Ghulam Nabi and others v. The State 1984 M LD 1317. In this case, it has been held as under:-- "Bail is urged on ttie ground that there is a cross-version and the complainant party has suppressed the grievous as well as simple injuries suffered by Nabi Bakhsh Petitioner, his brother Ghulam Shabbir and his wife Mst. Haseena Mai. In all, twelve injuries were found on their persons, which were of the same duration as that of the deceased and the injured P.Ws. One of the injuries of Nabi Bakhsh was grievous. The location of the injuries was head, chest and abdomen."
(iv) Nadir and 2 others v. The State 1985 PCr.LJ 247. Relevant page 249, wherein it has been held as under:- "The crucial question who was the aggressor in this fight is yet to be determined. Assuming without conceding that the fatal bullet that killed the deceased was fired by this applicant still it is open to this applicant at the trial to show that during that free fight in which he himself has suffered no less than 8 injuries, this shot was fired in self-defence and not with the intention to kill. The scales might turn in his favour. And if he is able to prove that he was not the aggressor then, he would be entitled to acquittal."
' Learned counsel also placed reliance on the following reported judgments in support of his arguments:--
(v) The State v. Khair-ur-Rehman PLD 1960 (W.P.) Peshawar 50;
(vi) Sardar Ali v. The Crown PLD 1953 FC 93;
(vii) Aludo Alias Ali Bux v. The State 1976 P.Cr.LJ 329;
(viii) Noor Illahi v. The State PLD 1966 SC 708;
(ix) Cr. Petition No,90-K of 2004 Ali Akbar v. Rehan and others;
(x) Cr. Bail Application No,844 of 2008 Haji Nawaz Ali Bukak and another v. The State
7. Conversely, learned counsel for the complainant argued that the learned lInd Additional District and Sessions Judge Karachi East has rightly refused bail to the present applicant/accused person for the reason that the accused has been nominated in the F.I.R. And role has been assigned i,e, accused/applicant took out pistol with intention to kill and started firing upon the deceased namely Irfan Ali alias Kali, who received injuries and was being taken to hospital, however, succumbed to his injuries on the way. The learned counsel further argued that the P.Ws.
Corroborated the complainant in their statements under section 161, Cr.P.C. That crime empty was also secured from the place of incident. That MLO report also suggests that the cause of death is due to fire-arm injury.
' However, the learned counsel for the complainant did not advert upon the effect of pendency of the criminal complaint filed by the accused persons wherein the question of counter-version, the fire-arm injury to co-accused namely Mutalib Khan, his statement on oath under section 200, Cr.P.C. And the evidence of four P.Ws. Under section 202, Cr.P.C. Supporting version of the accused namely Mutlaib Khan is under scrutiny before the learned 'Ind Additional District Judge Karachi- East.
8. The learned Assistant Prosecutor General has adopted the arguments of the counsel for the complaint and stated that since it is a case falling under prohibitory clause and the same is heinous in nature, therefore, the applicant may not be released on bail at this stage.
9. I have heard the learned counsel for the parties and perused the case record. This is a case where before lodging F.I.R. a report of Station Diary No,52 dated 28-12-2008 at 2115 hours was made at Police Station Soldier Bazar, Karachi, by A.S.-I. Muzaffar Hussain through telephone. As per station diary, according to A.S.-I. Muzaffar Hussain, at about 2200 hours he reached at Warly Road, opposite Ibrahim Shah Bukhari Mazar, Soldier Bazaar, Karachi, where three armed persons have murdered Irfan alias Kali by firing and he arrested two accused persons namely, Mutalib Khan son of Naimat Khan and Naimat Khan son of Haji Ali Akbar. He also recovered pistol along with other articles and one accused was taken into custody in injured condition. Whereas as per contents of the F.I.R. There is allegation of firing against applicant namely Naimat Khan only. F.I.R. Was registered after about two hours of the incident, whereas accused persons were arrested prior to registration of F.I.R. As per the contents of F.I.R., the complainant has shown his presence along with his brother at the place of incidence by silently chasing the present applicant and his brother (deceased), despite of the fact that the applicant accused is the relative and father-in-law of the sister of the complainant. F.I.R. Is silent as to how and under what circumstances the accused applicant namely Naimat Khan took out pistol and started firing upon the deceased namely Irfan alias Kali who was qon-in-law of applicant. It is also pertinent to mention that admittedly one of the co-accused namely Mutalib Khan was badly wounded due to fire-arm injury at the time of his arrest on the date of incident and this fact was concealed by the complainant, who has shown the presence of the co-accused namely Mutalib Khan along with one Haroon and exchange of firing at the place of incident. The recovery of the weapon has been shown from co-accused namely Mutalib Khan and not from the present applicant. In the statement of interrogation as well as statement under section 200, Cr.P.C. In the Court of IInd Additional Sessions Judge Karachi East, the accused namely Mutalib Khan has categorically stated that the deceased namely Irfan alias Kali started firing at him with intention to kill him and from such firing he received fire-arm injury on his right hand, whereas second fire which according to him was aimed at his head, which he escaped by ducking down. According to co-accused Mutalib Khan, it was only in self-defence that he fired at deceased Irfan Ali alias Kali, who fell down after having received bullet injuries and eventually died. A Criminal Complaint No,1051 of 2009 to this effect is pending in the Court of IInd Additional Sessions Judge Karachi East, wherein statement under section 200, Cr.P.C. To co-accused namely Mutalib Khan, MLO Dr. Pardeem Kumar, Syed Muzaffar Shah, Shahid Iqbal and Muzaffar Hussain have been recorded, who supported the version of the accused persons.
10. The A.S.-I. Mian Khan, who registered the F.I.R. Has also been examined, who stated that he has arrested two accused persons namely Naimat Khan and Mutalib Khan. As per his statement, co- accused Mutalib Khan was injured at the time of arrest, who was taken to JPMC and MLO report dated 28-12-2008 was issued which confirmed the firearm injury upon co-accused Mutalib Khan.
11. Under the circumstances, I am of the view that this appears to be a case of counter version where out of same alleged incident, co-accused namely, Mutalib Khan received fire-arm injury and survived, whereas the deceased namely, Wan Ali alias Kali having received firearm injury could not survive. No recovery was made from the present applicant/accused except Rs.96,970 and a licence of pistol. This is a case of further inquiry and cannot be termed as a case free from doubt. In my humble opinion the ratio of the case laws relied upon by the learned counsel for the applicant, particularly cases relating to counter version, is attracted to the facts of this case. I am further fortified in my view by the judgment of Honourable Supreme Court in the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCM R 1845, in which Honourable Supreme Court while providing guidelines for the exercise of jurisdiction in bail matters and in the cases of two counter versions arising from the same incident held as under:- "Now what would constitute as sufficient grounds for further enquiry would depend on the peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example, if accused is charged for offence under section 302, P.P.C. But there are grounds for further enquiry which may show that he may not be convicted of the charge under section 302, P.P.C. But may be acquitted or convicted for a lesser offence."
"In 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 counter-versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed."
12. On perusal of the F.I.R. And on tentative assessment of the evidence and looking at the advanced age of present applicant admittedly with strained relations, it appears to be a case of counter version and the truth can only be crystallized after recording of evidence. Though plea of self-defence and alibi will be examined at the trial stage after evidence. However, version of the accused party relating to their claim of self-defence cannot be ruled out at this stage particularly in view of the pendency of the criminal complaint, wherein one of the co-accused namely Mutalib Khan and four prosecution witnesses have been examined. Unless the disputed facts are resolved and suspicion due to counter version of the parties is removed after further inquiry and recording of evidence in both the cases, version of either party cannot be considered as free from doubt. For the purposes of examining the ground for grant of bail the parameters laid down by superior Court as well as this Court refer to the prima facie case and tentative assessment of the evidence and not the final conclusion on the merits of the case. It is pertinent to observe that the case-law referred and relied upon by the learned counsel for the applicant in the instant case, though refers to distinguishable facts and circumstances, but I am guided by the ratio of such judgments wherein it is, held that when there is a case of counter version of both the parties in respect of same incident persons from both the sides have received fire-arm injury and it is yet to be determined as to which party was the aggressor, the case requires further inquiry and cannot be termed as free from doubt.
13. In view of the facts and circumstances of the case, the bail is granted to the applicant subject to furnishing solvent surety in the sum of Rs.3,00,000 (Rupees Three Lac) with equal amount of P.R.
Bond to the satisfaction of the trial Court.
14. However, if the applicant misuses the concession of bail, the trial Court shall be at liberty to proceed against the applicant as per law. Needless to observe that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by any of such observation and shall decide the case strictly on merits and on the basis of evidence.
' The bail application is disposed of in above terms.