' MUHAMMAD TASNIM, J.---Applicants seek pre-arrest bail in Crime No,122 of 2009, under section 324/147/148/149/504, P.P.C., Police Station Taluka MPS.
2. The applicants had directly approached this Court through the present bail application. Along with this bail application, an application under Rule, 7 of the High Court Benches Rules 1987 was also filed, which was taken up by the honourable Chief Justice of this Court (as he then was) and ordered that above matter may be, entertained at principal seat at Karachi. Accordingly, applicants were granted interim pre-arrest bail on their furnishing surety in the sum of Rs,1,00,000 (Rupees One Lac) each and P.R bond in the like amount to the satisfaction of Nazir of this Court per order dated 12-9-2009.
3. The case of the prosecution, as set out in the F.I.R., is that on 26-7-2009 in the evening at about 7- 00 p.m Haji Muhammad Ali Samoon with the help of his brothers and others were removing inauguration board with tractor, to whom complainant, Muhammad Asif and Ibrahim asked not to remove the board, on such instruction Haji Muhammad Ali replied the complainant and others that they should go silently otherwise it will not be better for them. On the next date on 27-7-2009 at 7- 30 p.m. In the evening complainant, his brother Mohammad Asif, Javed and others were standing on the bus stop Samoon Village, meanwhile Haji Muhammad Ali Samoon, who was holding kalashnikov in his hand, Ghulam Muhammad alias Gulu was holding repeater in his hand, Meer Muhammad holding kalashnikov, Niaz Muhammad was holding pistol in his hand, Zaheer Punjabi holding kalashnikov, Muhammad Yousuf having lathi and 5/6 other persons were holding lathies in their hands reached there. Haji Muhammad Ali abused with reference to yesterday's incident and thereafter all the persons named above also started rioting and abusing the complainant party. It is further mentioned in the that Haji Muhammad Ali, Ghulam Muhammad alias Gulu, Meer Muhammad, Niaz Muhammad Samoon, Zaheer Punjabi and others fired straight upon us with intention to kill from their weapons in their hands, which hit to Asif, Javed and Ibrahim, who fell down on the road and the accused party kept on firing upon the complainant party. It is further stated in the F.I.R. That firing on behalf of complainant party had also taken place and one Muhammad Yousif from accused party got injured and fell down. In the meanwhile Roshan Ali, Bachal and many others came there, on their coming all the accused persons ran away while making firing. Thereafter complainant noted that Asif at his ears, Javed at his right shoulder and Muhammad Ibrahim at his right leg sustained bullet and pallets shots. Accused Muhammad Yousif had also sustained fire shot. Thereafter injured persons were taken to the Civil Hospital, whereafter giving them first aid, Asif and Muhammad Yousif were referred for further treatment to Hyderabad and Javed and Muhammad Ibrahim remained under treatment at Civil Hospital MPs. Thereafter F.I.R was lodged wherein complainant said that Haji Muhammad Ali, Ghulam Muhammad alias Gulu, Meer Muhammad, Niaz Muhammad, Zaheer, Muhammad Yousif and 5/6 others being armed with weapons with common intention rioted and while 'abusing the complainant party made straight firing upon the complainant party to kill them. Due to which Asif, Javed and Muhammad Ibrahim were injured. From the side of accused persons Muhammad Yousif also sustained injuries.
4. Mr. Muhammad Ashraf Kazi, learned counsel for the applicants, in support of this bail application, has submitted that this is a case of counter-version and complainant party has lodged the F.I.R.
No,122 of 2009, whereas accused party also approached to the relevant police station for lodging of F.I.R. On 27-7-2009, but their F.I.R. Was not registered, in the circumstances, they filed petition under section 22-A, Cr.P.C. On 29-7-2009 before the learned Sessions Judge, who finally passed order on the petition of complainant's party on 10-8-2009, where after F.I.R. No,128 of 2009, under sections 324, 147, 148, 149, 504 & 34, P.P.C. Was also registered at the same police station against the complainant party. He further submitted that for the same offence another F.I.R being F.I.R No,134 of 2009, under sections 395, 436, 427 & 114, P.P.C. Was registered. He further submitted that Muhammad Ibrahim in his statement under section 161, Cr.P.C. Recorded on 29-7-2009 has stated that Ghulam Muhammad alias Gulu with intention to kill made straight firing from holding repeater upon son of complainant Muhammad Asif, who after receiving firearm injury fell down and blood was oozing and Meer Muhammad, Zaheer and others with intention to kill made firing upon us, which hit on my thigh of right leg and upper arm muscle of the right hand of Javed. He also invited my attention to the statement under section 161, Cr.P.C. Of P.W. Jawed, who had stated that Ghulam Muhammad alias Gulu with intention to kill made straight firing from holding repeater upon Muhammad Asif. Muhammad Ali Samoon and others also with intention to kill made firing upon them, which hit the complainant on upper arm muscle of the right hand, thigh of right leg of the Ibrahim Samoon. Leaned counsel further submitted that as per prosecution case applicant No,1 was having kalashnikov, applicant No,2 was also having kalashnikov, applicant No,3 was having pistol and applicant No,4 was having kalashnikov. But from that place of occurrence only four empties of repeater have been recovered and as per prosecution case Ghulam Muhammad was having repeater. As per contents of F.I.R., Statements of P.W Muhammad Ibrahim and statement of P.W Javed accused Ghulam Muhammad was having repeater in his hand. Learned counsel for the applicants further submitted that Ghulam Muhammad alias Gulu has been admitted to bail by the learned Ist Additional Sessions Judge, Mirpurkhas vide order dated 21-12-2009 in Sessions Case No,182 of 2009, certified copy of the bail order appears on record. Learned counsel further submitted that this is a case of counter-version and it is yet to be determined that who was the aggressor. He submitted that applicants were admitted to bail about two years ago, but they have not misused interim pre-arrest to them and they are regularly attending learned trial Court. He further submitted that in the F.I.R. No,128 of 2009 lodged by the applicants' side against the complainant party, wherein Allah Bux, Javed Ali, Muhammad Ibrahim and Roshan Ali have been admitted to bail by the learned Ist Additional Sessions Judge, Mirpurkhas vide his order dated 16-9- 2009. He further submitted that case of the prosecution is not consistent and the statements of prosecution witnesses are conflicting. He further submitted that it is an admitted position that Muhammed Yousif from the applicants' side was also injured during the firing made by the complainant party. He further submitted that applicants have been falsely implicated in this case due to previous enmity and complainant wants to ridicule the applicants. In the end, learned counsel for the applicants submitted that interim pre-arrest to the applicants on 12-9-2009 be confirmed. In support of his contentions, learned counsel for the applicants has relied upon the following case-law:--
(1) RAIS WAZIR AHM.AD v. THE STATE (2004 SCMR 1167),
(2) SULTAN AHMED SIDDIQUI v. THE STATE PLD 2010 KARACHI 110),
(3) , NADIR AND 2 OTHERS v. THE STATE (1985 PCr.LJ 247),
(4) JAFFAR AND OTHERS v. THE STATE (1980 SCMR 784),
(5) 'SHOAIB MEHMOOD BUTT v. IFTIKHAR-UL-HAQ AND OTHERS (1996 SCMR 1845),
(6) NOOR MUHAMMAD v. THE STATE (2009 SCMR 324),
(7) DILMURAD v. THE STATE (2010 SCMR 1178),
(8) KOURO AND ANOTHER v. THE STATE (2004 YLR 2434),
(9) MEERAN PLD 1989 SC 347),
(10) MUHAMMAD SHAHZAD SIDDIQUI v. THE STATE AND ANOTHER (PLD 2009 Supreme Court 58), AND
(11) RANA MUHAMMAD ARSHAD v. MUHAMMAD RAFIQUE AND ANOTHER (PLD 2009 Supreme.Court 427).
5. On the other hand, Mr. Salahuddin Panhwar, learned counsel for the complainant has vehemently opposed the grant of bail and he has mainly contested the maintainability of the present bail application on the ground hat applicants have not approached to the learned Sessions Judge for seeking bail. He further submitted that application before this Court is not maintainable in the circumstances of the case. However, learned counsel for the complainant did not argue the bail application on merits. He submitted that present bail application may be converted into protective bail and applicants may be directed to appear before the learned trial Court for seeking bail. In support his contentions, learned counsel for the, complainant has relied upon the following case-law:-
(1) RANA MUHAMMAD ARSHAD v. MUHAMMAD RAFIQUE AND ANOTHER (PLD 2009 Supreme Court 427),
(2) HAJI MUHAMMAD ALI KHAN AND OTHERS v. THE STATE (2010 PCr.LJ 310),
(3) MANZOOR HUSSAIN v. THE STATE (PLD 2008 Karachi 157).
6. Ms. Seema Zaidi, Assistant Prosecutor-General Sindh has adopted the arguments of the learned counsel for the complainant and has also opposed the confirmation of bail.
7. I have heard the learned counsel for the parties and have perused the record so also case-law cited at bar.
8. With regard to the point of maintainability of the present bail application before this Court, the applicants have disclosed the reasons for approaching this Court directly in paragraph-2 of the affidavit in support of application under Rule 7 of the High Court Benches Rules, 1987, wherein it has been stated that applicants are affiliated with PML(Q) and the complainant party belongs to ruling party, therefore by using their influence the complainant party had deployed the police around the Sessions Court Mirpurkhas and similar was the position at the Circuit Bench at Hyderabad. It is further stated that after the alleged incident shops of the applicants and their stocks were burnt by the complainant party, they were forced to leave Mirpurkhas to save their lives, in the circumstances, they travelled to Karachi and made application under Rule 7 of the High Court Benches Rules, 1987, which was granted and it was ordered that matter may be entertained at the principal seat. Even otherwise it is a consistent, view of the superior Courts that once interim pre- arrest bail has been granted by the Court the bail application be decided on merits instead of dismissing it on technical ground.
9. In the case of Rais Wazir Ahmad (supra), the honourable Supreme Court of Pakistan while dealing with the point of direct filing of bail application before High Court has observed in the following words:-- "..........It is true that normally a person, against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i,e, Sessions Judge, in the matter of bail before arrest because propriety so demands but it is not an absolute rule as depending upon the compelling circumstances of each case a person can approach directly to the High Court by invoking its concurrent jurisdiction. Reference may be made to Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Raflq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v.
The State 1999 PCr.LJ 74. Besides it if such an application has been moved before the High Court and it has entertained and granted ad interim bail to the applicant then instead of dismissing it on technical grounds it should have disposed it on merits. As in this case the charge against the petitioner is under section 506, P.P.C. And allegedly case has been registered against the petitioner at the instance of complainant due to his political influence as has been narrated in application for grant of bail, then the Court instead of rejecting plea of the petitioner for bail before arrest ought to have decided application on merits."
10. In the above quoted judgment the honourable apex Court has held that if there are compelling circumstances the person can approach the High Court without filing his bail application before the lower judicial forum. In the present case, as stated above, the applicants tried their level best to file bail application before the learned Sessions Judge, but due to fear of their arrest they tried to approach to the Circuit Bench of this Court at Hyderabad, but when they found police available at Circuit Bench Hyderabad they travelled to Karachi and filed present bail application. In view of above quoted Supreme Court judgment the bail application filed by the present applicants is maintainable. Similar view has also been expressed in the cases of a The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322), Nadeem Hamid v. The State (PLD 1997 Karachi 494) and Shamrez Khan v. The State (1999 PCr.LJ 74).
11. On merits, it is admitted position that three F.I.Rs, were registered for the' same incident. F.I.R.
No,122 of 2009 was registered by the complainant side, likewise another F.I.R. No,128 of 2009 was registered by the applicants' side. It is admitted position that on both the sides persons have sustained' firearm injuries. It is yet to be decided as to who was the aggressor during the crime. It is also admitted position that applicants Nos.1, 2 and 3 were having kalashnikovs at the time of occurrence and applicant No,4 was having lathi, but as per prosecution witnesses namely Muhammad Ibrahim and Javed, accused Ghulam Muhammad made firing from his repeater upon Muhammad Asif. It is also admitted position that from the place of occurrence four empties of repeater was found, but no empty either from pistol or kalashnikov was found at the scene of occurrence. It is also admitted position that Ghulam Muhammad, who was having kalashnikov in his hand at the time of occurrence and, as per prosecution case, had made firing upon Asif causing injury to him had been admitted to bail by the learned trial Court. Prima facie, the statements of prosecution witnesses are not in line with each other and case of the prosecution is not free from doubt, which requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. I am mindful of the fact that deeper appreciation of the record cannot be gone into at the bail stage, but only tentative assessme nt is to be made just to find out as to whether present applicants/accused are connected with the commission of offence or not. If above settled legal position is kept in mind and record of this case is examined, it will be noted that applicants have successfully made out a case of further enquiry for the reasons mentioned hereinabove.
12. The honourable Supreme Court of Pakistan while dealing with the case of counter-version arising from same incident has decided the issue in the case of Shoaib Mehmood Butt (supra) in the following words:-- "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.
The case 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 SCMR 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 SCMR 682).
17. In this case, contentions are raised on behalf of both the parties to the effect as to which version in the two F.I.Rs, is correct and which party is aggressor and which party is aggressed.
Hence, the contentions relating to these questions can be gone into and decided by the trial Court after elaborate evaluation of the evidence recorded by it. We after careful consideration of the orders passed by the High Court and the contentions raised before us on behalf of both the parties, are of the view that the reasoning given by the High Court for the grant of bail is not perverse or capricious warranting interference by this Court. For this proposition reliance is placed on the cases of Ahmed v. Sheru (1979 SCMR 526) and Tariq Bashir v. State (PLD 1995 SC 34).
However, we would like to point out in no uncertain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and are not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the law of the time of disposal of the case which, of course it is needless to say, is the function of the trial Court."
13. The honourable Supreme Court of Pakistan while dealing with the case of counter-version in the case of Jaffar and others (supra) and in the circumstances when there was no material available on record to conclude as to who caused the fatal injury, the honourable Supreme Court of Pakistan observed that in such circumstances case becomes a case of further enquiry in terms of section 497(2), Cr.P.C. The honourable Supreme Court of. Pakistan while dealing with above issue has observed as under:-- "In seeking leave to appeal the learned counsel for the petitioners contended that the first petitioner had also received injuries in the fight and while refusing bail to the petitioners, the High Court did not give due consideration to the counter-version. It was next contended that from the available material it could not be said as, to who caused the fatal injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry under section 497(2), Cr. P. C. The learned Additional Advocate-General appeared to oppose the bail but after examining the material we were of the view that it was case of further inquiry. Accordingly we converted the petition into an appeal and allowed bail to the petitioners."
14. The case-law cited by the, learned counsel for the complainant have been examined. All the judgments cited by learned counsel for the complainant are distinguishable on facts and are not applicable to the case in hand. On merits the applicants have made out a case of further inquiry in terms of subsection (2) of section 497, Cr .P.C.
15. Accordingly, interim pre-arrest to the applicants per order dated 12-9-2009 is hereby confirmed on the same terms and conditions. Interim pre-arrest bail earlier granted to the applicants was confirmed by short order dated 29-9-2011 and these are the reasons for the same.
16. Needless to mention that observations made in this order is tentative in nature and shall not affect the pending trial. The learned trial Court shall pass the final judgment on the basis of evidence that may come on record and the law.
17. Bail application is disposed of in the above terms.