' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the order dated 4-12-2012 passed by the learned Vth Additional Sessions Judge, Karachi West in Bail Application No,1318 of 2012, Crime No, 226/2012 under section 302/34, P.P.C. Registered at Police Station Docks, Karachi, whereby bail application of the applicant Abdul Rahim was dismissed, the applicant has filed instant bail application under section 497, Cr.P.C. Seeking his release on bail subject to furnishing surety.
2. Brief facts as stated in the F.I.R. Are as under:- "That on 9-9-2012, mortuary Civil Hospital Karachi at 1250 hours, statement under section 154 Cr.P.C.
From Hassan Muhammad son of Noor Muhammad resident of address given in Column 2 of the F.I.R stated as under:- "That I am residing along with my family on the above said address and working as P.C. In PQR and nowadays am on duty at Police Station Darakhshan, Hussain Muhammad deceased was my elder brother was residing near Alfalah Chowk Muhammadi Colony and was running a scrap shop and was also life time Chairman of Ghazi Welfare Association, on the day of incident we all were present at home that a phone call was received at home that my brother. Hussain Muhammad had a quarrel at Al Falah Chowk and has been taken to Civil Hospital and I came to Civil Hospital and the dead body of my brother Hussain Muhammad was lying at mortuary Civil Hospital, I inquired from my relatives present in Civil Hospital so I came to know at about 9 A.M. Younger son of the Khair Muhammad was plucking flowers who was stopped by Hussain Muhammad and he went away, after some time Khair Muhammad along with his sons (1) Abdul Rehman, (2) Abdul Karim and (3) Abdul Rahim came at the shop, Abdul Rehman and Abdul Karim were holding pistols and Khair Muhammad along with them went into the shop and Khair Muhammad asked them to shot Hussain Muhammad, Abdul Karim and Abdul Rehman fired upon the Hussain Muhammad with intention to kill, Hussain Muhammad got injured and came out of the shop and fell down, Khair Muhammad and sons went away from there, the Mohalla people and relative brought the dead body of Hussain Muhammad to a Civil Hospital in an ambulance, after the legal formularies of police I received the dead body of my brother, this my statement, my claim is against the accused Khair Muhammad and his sons Abdul Rehman, Abdul Karim, Abdul Rahim for firing upon my brother Hussain Muhammad, killing him due to an old grudge, I want proceeding, this my statement which I heard and admitted correct, hence this F.I.R."
3. Learned counsel for the applicant states that the applicant is innocent and has been falsely implicated in the instant crime, whereas no specific role has been assigned to the present applieant with the alleged crime of murder. Per learned counsel, this is a case of counter-version, as two F.I.Rs, of the same incident have been registered, whereas in F.I.R No,225 of 2012 the complainant party/accused have been granted bail by this Court in Cr. Bail Application No,7 of 2013 vide order dated 21-2-2013. Per learned counsel, even from perusal of the contents of the F.I.R. It can be seen that neither the applicant was, in possession of any weapon nor any overt act has been committed by the applicant relating to alleged murder of deceased namely Hussain Muhammad.
Per learned counsel, at best the allegation against the present applicant/accused is that he has accompanied the accused persons who have committed the alleged offence with a common intention to murder the deceased. Learned counsel in addition to seeking bail on merits has also sought bail on the ground of rule of consistency as according to him the complainant party has already been granted bail in the counter F.I.R. Of this alleged incidence. Per learned counsel, the matter requires further inquiry as it is yet to be determined as to which party is aggressor and who has been aggressed upon. It has been prayed that applicant accused may be enlarged on bail. In support of his contention, learned counsel has placed reliance on the following reported case- laws:-
(1) Mehmood Akhtar and another v. Haji Nazir Ahmad and 4 others 1995 SCM R 310
(2) Naimat Khan v. The State 2010 PCr.LJ 964
4. Conversely, Mr. Ali Gohar Masroof, learned counsel for the complainant, has opposed the grant of bail to the present applicant/accused and submits that from the perusal of the contents of both the F.I.Rs, it can be easily determined as to who is the aggressor party. It is further submitted that admittedly, the present applicant along with other co-accused persons visited the shop of the deceased namely Hussain Muhammad, who has been murdered, hence, it cannot be termed as a case of counter-version. Per learned counsel, rule of consistency is not applicable to the facts of this case hence the applicant may not be enlarged on bail. Learned A.P.-G. Also opposed the grant of bail to the applicant and supported the arguments of the learned counsel for the complainant. It has been submitted that in the instant case common intention to commit the murder of deceased Hussain Muhammad can be ascertained from perusal of the contents of F.I.R, as according to him the applicant/accused along with other co-accused persons visited at the shop of deceased, whereafter the deceased received firearms injury and died. It is submitted that though no overt act is attributed to the present applicant, however common intention to the commit the offence can be ascertained.
5. I have heard both the learned counsel as well as A.P.-G., perused the record of the case and have also examined the case-law relied upon by the learned counsel for the applicant. Admittedly, two F.I.Rs, of the same incident have been registered on the same date by both the applicant and complainant party, wherein, two different versions have been stated. In F.I.R. No,225 of 2012, accused of complainant side have been granted bail by this Court vide order dated 21-2-2013 on the grounds that since it is case of counter-version of same alleged incident, whereas, it has to be determined as to which party is aggressor and which party has been aggressed upon, which exercise can be undertaken by the trial Court on examination of material and the evidence on record, whereas matter requires further inquiry, accordingly, bail was granted. Moreover, as regards the role of present applicant/accused assigned in the instant F.I.R., it appears that no specific role has been assigned to the present applicant/ accused with the alleged offence nor he has committed any overt act to cause any injury to the deceased who reportedly died after having received firearm injury caused by co-accused who have been shown as absconders. No recovery whatsoever has been effected from the applicant/accused, whereas the applicant himself has reportedly received firearm injuries in the alleged incident. As regards common intention to commit the offence the same can be determined at trial keeping in view the material available on record and the evidence produced before the learned trial Court. In the case of Naimat Khan v. The State 2010 PCr.LJ 964 under somewhat similar circumstances, the applicant was granted bail by this Court after having placed reliance in the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCM R 1845, wherein, the Hon'ble 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 inquiry 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 inquiry 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 inquiry into his guilt which means that the question would 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."
' Further reliance in this regard can also be placed on the case of Mehmood Akhtar and another v.
Haji Nazir Ahmad and 4 others 1995 SCM R 310.
6. In view of hereinabove, I am of the opinion that the applicant has made out a case for grant of bail at this stage as the Matter requires further inquiry.
' Accordingly, applicant is admitted to bail subject to furnishing surety in the sum of Rs,1,50,000 (Rupees One Lac Fifty Thousand) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
7. Needless to observe that the observations made hereinabove are tentative in nature and the learned trial Court shall not be prejudiced by any such observation and shall decide the case on merits in view of the evidence available on record.