' SARDAR MUHAMMAD SHAMIM KHAN, J.---Peer Mumtaz Shah Khagga, petitioner seeks post arrest bail in case F.I.R. No,454 of 2010 dated 22-9-2010 for the offence under sections 302, 324, 109 and 34 P.P.C. Registered at Police Station Noor Shah, District Sahiwal.
2. Precise allegations as narrated in "the F.I.R. Are that on 21-9-2010 at about 7-00 p.m. Complainant along with Mst. Rani Bibi, Aftab, Zilla and Malik Ali, was present at his Dera. In the meanwhile Peer Mumtaz Shah Khagga, petitioner, Riaz, Bashir Ahmad and Ramzan armed with fire arms reached there. Peer Mumtaz Shah Khagga; petitioner allegedly fired at the complainant but it hit Mst. Rani Bibi on her forehead, who was sitting beside him. Second fire of Peer Mumtaz Shah Khagga, petitioner hit on the right hand of Ajam Shah, complainant. Allegation against Bashir Ahmad was that he fired at the complainant which hit on his left shoulder and back of chest, whereas fire of Ramzan, co-accused hit Zillah on his right thigh. Mst. Rani Bibi succumbed to injuries after registration of F.I.R., so, offence under section 302, P.P.C. Was added.
3. Learned counsel for the petitioner submits that there was delay of four hours in lodging F.I.R.; that although motive of the occurrence is attributed to the petitioner, yet petitioner has been falsely involved in this case on account of motive mentioned in the F.I.R. As motive is double edged weapon; that in fact Ajjam Shah, complainant of this case fired at the petitioner which hit him on the back of right lumber just above the illiac crest and the petitioner in exercise of right of his self- defense fired which hit the complainant on his left shoulder; that in order to save his own skin and in order to involve the petitioner in a false case, Ajjam Shah, complainant himself fired at Mst. Rani Bibi, deceased and caused her death; that, this fact finds corroboration from the stance taken by Mst. Saban Bibi, mother of Mst. Rani Bibi, deceased, who filed a private complaint wherein she contended that that after the exchange of fires between the petitioner and the complainant, Ajjam Shah, complainant fired with rifle which hit Mst. Rani Bibi, her daughter, in her presence in order to falsely implicate his enemies; that Mst. Saban Bibi got her statement recorded before learned Addl.
Sessions Judge, Sahiwal on 2-2-2011 but ultimately this complaint was withdrawn by Mst. Saban Bibi due to the pressure of Ajjam Shah, complainant, who is a history sheeter; that during this occurrence Peer Mumtaz Shah Khagga, petitioner also sustained fire-arm injury which was suppressed by, the complainant in the F.I.R.; that Peer Mumtaz Shah Khagga, petitioner filed a private complaint under sections 302 and 34, P.P.C. Against Ajjam Shah (complainant of this case), Muhammad Asif alias Toka, Malik Ali alias Malki and Shaukat Hussain, wherein Ajjam Shah is alleged to have fired at Mst. Rani Bibi, deceased; that after recording cursory evidence of the petitioner, learned Addl. Sessions Judge, Sahiwal summoned Ajjam Shah and others to face the trial in the complaint case regarding the instant occurrence vide his order dated 8-2-2011, so, it was a case of two versions and version of Peer Mumtaz Shah Khagga, petitioner in the complaint case is in line with the version Mst. Saban Bibi, mother of Mst. Rani Bibi, deceased; that learned trial Court after recording the evidence would determine that which party was aggressor and who committed murder of Mst. Rani Bibi; that police secured two empties of .16 bore from the place of occurrence and police also recovered gun .16 bore from the possession of Peer Mumtaz Shah Khagga, petitioner but bullet was recovered from the body of Mst. Rani Bibi, deceased during post mortem examination which falsifies the prosecution story, that, according to the story of Mst. Saban Bibi and version of the petitioner narrated in his complaint case, Ajjam Shah fired at Mst. Rani Bibi with rifle-222; that keeping in view the facts and circumstances of the case, case of petitioner comes within the purview of further inquiry, so it is prayed that petitioner is entitled to be released on bail.
4. Learned D.P.-G. And learned counsel for the complainant contended that petitioner is specifically nominated in the promptly lodged F.I.R.; that occurrence took place at the Dera of Ajjam Shah, complainant where petitioner came armed and opened aggression by firing at the complainant which hit on the forehead of Mst. Rani Bibi, who succumbed to the injuries at the spot; that petitioner made second fire which hit the complainant on his right hand; that motive of the prosecution story is also attributed to the petitioner; that in a complaint filed by the petitioner he himself admitted that in exercise of his right of self-defence, he fired at the complainant which hit Ajjam Shah on his left shoulder but the right of self-defence cannot be considered at bail stage; that Mst. Saban Bibi mother of Mst. Rani Bibi, deceased filed a private complaint against Ajjam Shah, complainant of this case, but the same was withdrawn by her and as the same is not in field; so, it would be of no avail to the petitioner; that cross-version of the petitioner was found false during investigation; that although the complainant and others have been summoned in a private complaint filed by the petitioner yet every cross case cannot entitle an accused for the grant of bail. Reliance has been placed on case reported as "Farmanullah v. State and 3 others" 2010 YLR
670. It has lastly been contended that learned trial Court has framed charge in this case on 11-4- 2011 therefore, petitioner is not entitled to the grant of bail.
5. I have heard the arguments advanced by learned counsel for parties and perused the record with their able assistance.
6. This occurrence took place on 21-9-2010 at about 7-00 p.m. Whereas matter was reported to the police at 11-15 p.m. With the delay of about four hours which has not been properly explained by the complainant. It has been noticed that police station is situated at a distance of 1/2 Kilometer from the place of occurrence. Peer Mumtaz Shah Khagga, petitioner sustained fire arm injury in this occurrence on the back of right lumber just above the illiac crest, which has been suppressed by the prosecution in the F.I.R. Perusal of F.I.R. Reveals that there was dispute of inheritance of property between the petitioner and the complainant, who is brother of wife of the petitioner Mst. Saban Bibi, mother of Mst. Rani Bibi, deceased filed a private complaint against Ajjam Shah, complainant and both injured eyewitnesses of this case regarding the instant occurrence. The stance of Mst. Saban Bibi in her complaint was that she and her daughter Mst. Rani Bibi were maid of Ajjam Shah, complainant of this case and on the fateful day and time they were present in the house of Ajjam Shah, complainant. Suddenly, on hearing the reports of firing from the Dera of Ajjam Shah, they came outside the house in order to inquire about the matter and they came to know that Ajjam Shah, complainant fired at Peer Mumtaz Shah Khagga, petitioner, who had been taken to the hospital. In the meanwhile, Muhammad Asif alias Toka and Malik Ali alias Malki on the asking of Ajjam Shah, complainant caught hold of her daughter Mst. Rani Bibi, whereas Ajjam Shah fired with rifle at her daughter Mst. Rani Bibi in order to involve his enemies in this false case. Statement of Mst. Saban Bibi was recorded by learned Addl. Sessions Judge, Sahiwal on 2-2-2010 but Mst. Saban Bibi ultimately withdrew this complaint.. Possibility cannot be ruled out that Ajjam Shah, complainant of this , case forced Mst. Saban Bibi to withdraw the same in order to save his skin as she was a poor lady and was serving in his house.
7. Police secured two empties of gun .16-bore from the place of occurrence and Peer Mumtaz Shah Khagga, petitioner allegedly got recovered gun .16-bore during investigation. Empties secured from the place of occurrence and gun recovered at the instance of the petitioner were sent to Forensic Science Laboratory, Lahore and according to the report of said office, the crime empties of .16-bore had been fired from the gun .16-bore recovered from the possession of the petitioner. During post mortem examination of Mst. Rani Bibi, bullet was recovered from the body of the deceased.
According to the version of Mst. Saban Bibi in her complaint Ajjam Shah fired with rifle-222 at Mst.
Rani Bibi, deceased in her presence. 'Although complaint filed by Mst. Saban Bibi was withdrawn by her and now it is not in field but her version cannot be thrown into wind altogether. Petitioner was arrested in this case and police recorded his first version on 2842010. In his said statement petitioner took the stance that on the day of occurrence initially Ajjam Shah fired at him and he in self-defence made one fire shot which landed on the shoulder of Ajjam Shah and that Ajjam Shah himself committed the murder of Mst.Rani Bibi. Regarding the same occurrence Peer Mumtaz Shah Khagga, petitioner has also filed a private complaint against Ajjam Shah and others, wherein Ajjam Shah, complainant of this case is alleged to have fired at Mst. Rani Bibi, deceased; that after recording cursory evidence of the petitioner, learned Addl. Sessions Judge, Sahiwal summoned Ajjam Shah and others to face the trial in the complaint case regarding the instant occurrence vide his order dated 8-2-2011.
8. This is a case of two versions, which version was correct and, who was aggressor would be determined by the learned trial Court after taking evidence of both parties. Such cases of counter version about the same occurrence were covered for the grant of bail on the ground of further inquiry as contemplated under section 497(2) of Cr.P.C. In my view I am fortified by the judgment of august Supreme Court of Pakistan reported as "Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others" (1996 SCMR 1875) and "Ali Akbar Shah v. Banaras Shah" (1990 SCM R 1097) and judgment of this Court reported as "Zafar Iqbal v. The State" (1999 PCr.LJ 1840).
9. It may also be mentioned that as observed by August Supreme Court of Pakistan in a case reported as "NADRA v. Hamiat Khan" (PLD 1968 SC 310), plea of self-defense is one of the factor that can be considered by the Court at the time of bail stage.
10. For what has been discussed above, case of the petitioner comes within the ambit of further inquiry, therefore, petition in hand is accepted and petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court.