ORDER MUHAMMAD TASNIM, J.--- Through this bail application, applicants have applied for bail to this Court, who are booked in Crime No. 3 of 2008 registered with P.S. Dubar, under sections 302, 324, 114, 148, 149, P.P.C.
The prosecution story as narrated in the F.I.R. Is as under:-- On 31-1-2008 complainant Imam Bux Jatoi lodged F.I.R. Alleging therein that his son Qaimuddin had levelled allegation of KARAP against applicant Pathan with his were, as such compensation was demanded from them, due to which applicant Pathan and others were annoyed with the complainant party. On 31-1-2008 at 4-30 p.m., complainant his son Qaimuddin and cousin Wazir were available at bridge over Sangi minor near the village, meanwhile accused Ali Khan, Bero, Islam, Sobdar and Pathan arrived there. They told Qaimuddin that as he had levelled allegation of KARAP and demanded compensation from them, therefore, complainant party will not be spared and on the instigation of accused Bero, other accused opened fires upon the complainant party which hit Qaimuddin and Wazir while complainant raised cries. On the fire shots and hue and cry of the complainant, his son Kamil, nephew Allah Rakha and other villagers came running seeing them accused persons ran away towards their houses. Thereafter complainant party saw that Qaimuddin and Wazir had died at the spot due to injuries.
Leaving the witnesses over dead body, complainant appeared at P.S. And lodged the F.I.R.
Learned counsel for the applicants has argued that in this case as many as five accused were booked, namely,
1. Ali Khan,
2. Bero,
3. Islam,
4. Sobdar and 5. Pathan. He says that the accused Nos.2, 3 and 4 are absconding and accused Nos.1 and 6 are the present applicants. He says that as per F.I.R. There is only one eye-witness. Imam Bux, who is the complainant and two persons have died, namely, Qaimudin and Wazir.
Learned counsel in support of the bail application has 'submitted that no specific allegation against aforesaid applicants has been made in the F.I.R. The allegations are general in nature, which entitle the present applicants for grant of bail. He further says that police after investigation have shown accused Islam and Bero in Column No.2 of the charge-sheet. He further says that son of deceased Wazir has filed a private complaint before learned 2nd Additional Sessions Judge, who is seized of the above sessions case, who after conducting proceedings on private complaint has issued process against five accused persons including present complainant wherein son of Wazir namely Jani Dino has stated that persons booked in the above referred F.I.R. Have been wrongly implicated but actually his father has been killed by complainant in this case. He says that this is a case of counter version and the present applicants are entitled to bail on this ground as well. In support of his contentions, he has relied upon 1980 SCM R 784 Jaffar and others v. The State and 1996 SCM R 1845 Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others.
On the other hand learned A.P.-G. Has argued that the learned trial Judge has taken note of all the material placed before him and has rightly rejected bail application filed by the applicants. He further argued that this is not a case of counter-version and the private complaint was filed after delay of three months. He further says that from the place of Wardhat 12 empties of gun, 6 of KK and 4 of.12 bore gun were recovered. He further says that two persons have died, in the incident and F.I.R. Was promptly lodged and the present applicants are rightly booked in the trial and they should not be granted bail. In support of his contentions, learned A.P.-G. Has relied upon PLD 1994 SC 65 Shahzaman and 2 others v. The State and 1995 SCM R 1765 Haji Gul Khan v. Gul Daraz Khan and another. He also says that gun has also been recovered from applicant Pathan but no recovery was made from applicant Ali Khan. Learned A.P.-G. Has vehemently opposed the grant of bail.
I have heard the learned counsel for the parties and have perused the record. It is settled law that at the bail stage deeper appreciation of evidence cannot be gone into but only tentative assessm ent is to be made as to whether applicants are connected with the commission of offence or not. In the present case, it is admitted position that two persons have died and the F.I.R. Was lodged immediately in which present applicants along with others were cited as accused. On the other hand, son of deceased Wazir has filed a private complaint before 2nd Additional Sessions Judge, Sukkur. Though it was filed after delay of three months but such complaint was examined and after recording statements of witnesses process was issued by the learned trial Judge and at present he is seized of the matter. Since the complainant in the present case is also shown as an accused along with others and is also facing trial in the complaint case, it is yet to be seen whether the version taken by the complainant in the F.I.R. Is correct or version taken by Haji Dino in his private complaint which is pending adjudication.
It is further brought to my notice that about 2 or 2-1/2 years have elapsed but no substantial proceedings before, the learned 2nd Additional Sessions Judge, Sukkur has taken place. It cannot be judged from the record as to whom delay is to be attributed, however, one thing remains that the case has not proceeded.
Adverting to the judgments cited by the learned counsel for the applicants in support of his submissions that the allegations are general in nature and no specific role has been assigned. In case of Jaffar (supra) the Hon'ble Supreme Court has observed that where material on record not showing as to which of accused caused fatal injury leaving room for consideration regarding common intention of other accused, such case calls for further enquiry. Similarly in case of Shoaib Mehmood Butt (supra), the Hon'ble Supreme Court while dealing with the case of counter-version has ruled as under:-- "In case of counter-version arising from the same incident, one given by complainant in F.I.R. And the other given by the opposite party it is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 417(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 against".
Now taking up the case-law cited by learned A.P.-G. In case of Shah Zaman (supra), the Hon'ble Supreme Court has held that if F.I.R. Not pinpointing as to which of the accused had what weapon and who caused the fatal injury came to the conclusion that the case falls within ambit of subsection (2) of section 497, Cr.P.C. Calling further probe in the matter. While relying upon case of Haji Gul Khan (supra), learned A.P.-G. Has argued that the fact that the allegations were only general and no specific injury on the deceased was attributed to the accused could make the case for further enquiry. The judgment cited by the learned A.P.-G. Is distinguishable on facts and does not apply to the case in hand.
From the perusal of the record it will be seen that the complainant has implicated present applicants in the F.I.R. Whereas complainant himself has been implicated in the private complaint lodged by son of deceased Wazir. Such complaint has been registered and process has been issued to the accused persons including the complainant in this case. It is yet to be seen as to whether version in the F.I.R. Lodged by the complainant is correct or version in B the complaint lodged by son of deceased Wazir is correct.
In the circumstances of the present case, in my view, it requires further enquiry in terms of provisions of subsection (2) of section 497, Cr.P.C. On the grounds stated above amongst others, applicants are entitled to bail as their case requires further enquiry. Accordingly, both the applicants are admitted to bail on their furnishing solvent surety in the sum of Rs.Two lacs each with PR bond in the like amount to the satisfaction of trial Court.
Bail application stands disposed of accordingly.