' MANZOOR AHMAD MALIK, J.---This single order shall dispose of Criminal Miscellaneous No,10-B of 2011 titled as "Liaqat v. The State and others" a petition for bail after arrest filed by Liaqat petitioner and Criminal Miscellaneous No,862-CB of 2011 titled as "Mumtaz Bibi v. Kabir Khan alias Kamir and others" a petition for cancellation of bail allowed to Kabir Khan alias Kamir respondent No,1 by the learned Additional Sessions Judge, Jhang 'as both arise out of one and same F.I.R.
2. Liaqat, petitioner seeks bail after arrest in case F.I.R. No,566 dated 26-10-2009 offence under sections 302/148/149/109, P.P.C. Registered at Police Station Athara Hazari, District Jhang. Precisely, the allegation against the petitioner is that he along with his co-accused while armed with their respective weapons attacked the complainant party and committed the murder of Muhammad Ashraf, husband of the complainant and also caused injuries to Abdur Rehman.
3. Learned counsel for the petitioner, in support of this petition, contends that the allegation against the petitioner is that he fired which hit on the left thigh of the deceased (Muhammad Ashraf); that four persons namely, Nasrullah, Mazhar, Mehdi Hayat and Kameer were also injured from the petitioner's side and they all received firearm injuries; that they were taken to the hospital on the same day through the police ' and cross version on the statement of Hakim, father of the petitioner was also recorded; that the police has found the accused of cross version as guilty; that allegedly sota has been recovered from the petitioner whereas, in the F.I.R. It is stated that he was armed with firearm; that in the circumstances it is a case of two versions and the petitioner's case calls for further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure; that co-accused of the petitioner namely, Mehdi Hayat has already been allowed bail by this Court vide order dated 10-11-2010 passed in Criminal Miscellaneous No,11787-B of 2010.
4. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes this petition on the grounds that the petitioner is nominated in the F.I.R. With specific role of causing firearm injury to the deceased; that the challan has been submitted, charge has been framed and now the case is fixed for prosecution evidence; that the petitioner is fully implicated by the eyewitnesses whose statements have been recorded under section 161, Cr.P.C; that the petitioner has been found involved during the course of investigation.
5. I have heard learned counsel for both the sides.
6. Though the petitioner is nominated in the F.I .R. And the allegation against him is that he fired which landed on the left thigh of the deceased which is admittedly a non-vital part of the body.
Four persons from the petitioner's side namely, Mehdi Hayat, Nasrullah, Mazhar and Kameer also received firearm injuries. They were taken to the hospital on the same day by the police though examined on the next day and a cross version has been registered against the complainant side and that has been found correct during the course of investigation.
' In the case titled "Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others" (1996 SCM R 1845), 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 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. 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)."
' Therefore, it is for the learned trial Court to determine, after recording of evidence of both the sides, as to who was aggressor and who was aggressed upon.
7. As far as submission of challan is concerned, the Hon'ble Supreme Court of Pakistan in the case of "Abid Ali alias Ali v. The State" (2011 SCM R 161) at page 165 has held as under:-- "....Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. See Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is also settled principle of law that observations made by superior courts dealing with the bail matter are always tentative in nature."
8. In these circumstances, petitioner's case is one of further inquiry within the ambit of subsection
(2) of section 497, Code of Criminal Procedure. Furthermore, that co-accused of the petitioner namely, Mehdi Hayat has already been allowed bail by this Court vide order dated 10-11-2010 passed in Criminal Miscellaneous No, 11787-B of 2010, therefore, the petitioner is also entitled to the concession of bail on the principle of consistency. This petition is, therefore, allowed and the petitioner is admitted to bail after arrest subject to his furnishing bail bond in the sum of Rs,1,00,000 (rupees one lac only) with one surety in the like amount to the satisfaction of learned trial Court.
9. As far as, Criminal Miscellaneous No,862-CB of 2011 is concerned, it is the case of the prosecution that Kabir Khan alias Kamir fired at Muhammad Ashraf deceased which hit him on right flank.
Same allegation was levelled against Mehdi Hayat that he fired which hit on right flank of the deceased whereas, as per postmortem report, is an exit wound. Furthermore, co-accused of respondent Kabeer namely, Mehdi Hayat has already been allowed bail by this Court vide order dated 10-11-2010 passed in Criminal Miscellaneous No,11787-B of 2010 whereas, Liaqat accused has been allowed bail vide this order furthermore, grounds for grant of bail and its cancellation are altogether different. No ground for cancellation of bail allowed to Kabir Khan alias Kamir, respondent No,1 is made out, therefore, this petition is dismissed.
10. Before parting with this order it is clarified that the observations made in this order are tentative in nature and relevant only for the purpose of decision of this bail petition. The learned trial Court will not be influenced by any observation in any manner whatsoever.