TASSADUQ HUSSAIN JILLANI, J. -- Petitioner along with 18 others was proceeded against (in the case registered vide F.I.R. No, 127, dated 11.6.2012 under Sections 302/337-A(i), A(ii), A(iii), F(i), F(iii), F(v), L(2)/148/149, P.P.C, at P.S. Arooti, Tehsil Kamalia, District Toba Tek Singh) on the allegation that on the fateful day at about 10.00 a.m., they attacked the complainant party, when the complainant and other were going on a Tractor Trolley to purchase fertilizers, It was alleged that Shakeel @ Goshi raised a lalkara that they would avenge their honor where after he gave an iron rod blow on complainant's brother Ahmad Ali which landed on his head, Shafique gave an iron rod blow on Ahmad Ali which landed on his back, Liaqat petitioner and Sajid gave blows from the wrong side of hatchet; Sultan also gave a hatchet blow on his brother Ameer; that when Bashir Ahmad, Muhammad Zakir, Irfan and Amir tried to intervene, they too were belabored. Abdus Sattar, Yameen, Zulfiqar, Master Muhammad Rafiq and Hamdad were also attributed sota blows. On the hue and cry raised, the PWs were Attacted to the spot. The motive alleged was that a day prior to the occurrence, Shakeel @ Goshi had killed one of complainant's goats and threw it on the street; that he conveyed his resentment but the matter was mutually pattered up. Nevertheless, the accused Shakeel etc. bore a grudge and attacked him and his brothers.
2. Learned counsel for the petitioner seeks bail on the ground that the prosecution story is false; that petitioner was not involved in the occurrence; that four of the co-accused have already been declared innocent; that the F.I.R, with regard to the role attributed to petitioner is inconsistent as in the earlier part of the F.I.R, it is alleged that petitioner was armed with an iron rod, whereas in the operative part, he is alleged to have caused a hatchet blow along with Sajid co-accused from wrong side which landed on the left side of abdomen of Ahmad AIi that the accused party had a counter-version; that two persons from their side were also injured; that they filed a private complaint in which the complainant party has been summoned, In support of his submissions, the learned counsel relied on Noor Muhammad The State (2009 SCM R 324), Saeed Khan v. The State (2011 SCM R 1392) and Gul Din v. The State (2011 SCM R 1997).
3. Learned counsel for the complainant, on the other hand, submitted that petitioner is specifically named in the F.I.R.; that he caused a blow on the abdomen of the deceased; that the offence alleged falls within the prohibitory clause of Section 497, Cr.P.C, and that the counter-version of the accused party was found to be false during investigation.
4. Having considered the submissions made by learned counsel for the parties and learned Law Officer, it may be observed at the outset that every case of cross version does not necessarily make the guilt of the accused a matter of further inquiry and the Courts in such cases may resort to a tentative assessm ent of the material placed before them to form an opinion whether a case of further enquiry qua an accused is made out or not. In Iqbal Hussain v. Abdul Sattar and another (PLD 1990 SC 758), while setting aside the bail granting order of the High Court, the Court referred to the tendency in Courts to misconstrue the concept of further enquiry and held as follows:-- "It may straightway be observed that this Court has in a number of cases interpreted sub-section
(2) of Section 497, Cr.P.C, which, with respect, has not been correctly understood by the learned Judge in the High Court nor has it been properly applied in this case. While he thought that it was a case of further inquiry which element, as has been observed number of times in many cases, would be present in almost every case of this type. The main consideration on which the accused becomes entitled to bail under the said sub-section is a finding, though prima facie, by the police or by the Court in respect of the merits of the case. The learned Judge in this case avoided rendering such prima facie opinion on merits as is mentioned in sub-section (2) of Section 497, Cr.P.C, and relied only on the condition of further inquiry. This approach is not warranted by law.
Hence, the case not being covered by sub-section (2) of Section 497, Cr.P.C., the respondent was not entitled to bail thereunder as of right."
4. This view was followed in Nasir Muhammad Wassan v. The State (1992 SCM R 501).
5. In Shoaib Mehmood Butt v. Iftikhar-ul-Haq (1996 SCM R 1845), while upholding the bail granting order of the High Court and finding that the said order was neither perverse nor capricious warrarfting interference, the Court laid down the factors which may be considered in cases of counter-version while making a tentative assessment of the material/evidence with a view to form an opinion whether it was a case of further enquiry or not. It observed as follows:-- "Now what would constitute as sufficient grounds for further enquiry 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 enquiry simply for the reason that it van be answfred 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 enquiry into his guilt which means that the question should 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.
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, ln 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. AH 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)."
In reiterating the afore-mentioned view in Arif Din v. Amir Khan (2005 SCM R 1402), this Court struck a note of caution that every case Of cross-version would not be a case'of further enquiry and that tho Courts should ward off frivolous pleas. The Court meld 8 under:-- " Every accused in murder cases would come forward with a frivolous cross-version in order to make it a case of further inquiry and to get released on bail, It is to check these frivolous situations that even in cross cases the Courts are permitted to make tentative assessment. At times it is quite difficult to presume that a cross-case is false but at times the frivolity is apparent on the face of record. The only safeguard against frivolous and false cross-cases is to make a tentative assessment without any conclusive finding on the subject."
8. In Noor Muhammad v. The State (2009 SCM R 324), this Court allowed bail to the accused notwithstanding serious allegations levelled by the complainant; inter alia, on account of the counter version in which the complainant party had been summoned. The Court observed as follows:-- "3. Indeed, the ground that prevailed with the Courts below in declining bail to the petitioner was the fatal injury to the deceased was caused by a bullet allegedly fired at by the petitioner through his pistol. Nevertheless, it could not be said that this was a case of premeditated coldblooded murder, It is yet to be determined that to which of the party was the aggressor and whether capital punishment or that of imprisonment for life could be awarded in the circumstances."
9. In the instant case, admittedly petitioner is not connected with the motive pad of the prosecution-story which is relatable to an incident which took place a day earlier to the day of occurrence. The F.I.R, is inconsistent qua him inasmuch as in the earlier part of the F.I.R., it is alleged that he was armed with an iron rod whereas in the operative part it is alleged that he was carrying a hatchet and further that he and Sajid co-accused gave hatchet blows on Ahmad AM which landed on the left side of his back. There is, however, only one injury i,e, injury No, 2 on that side. As per the post-mortem report, there are four injuries on the deceased which are as follows:--- "(1) A lacerated wound 7 cm x 1 cm bone exposed on right side of head 5 cm above the right ear with swelling 10 cmx4 cm around the wound.
(2) A contused swelling 8 cm x 4 cm back of outer side of left chest lower part.
(3) A contused swelling 12 cm x 3 cm back on right side of chest lower part.
(4) Contused swelling 5cm x 3 cm on the back on right side of chest upper part."
10. The question as to who caused injury No, 2 would remain a moot point. Even otherwise, 10 out of 19 co- accused huge already been declared innocent during investigation. Five others were allowed bail by the High Court and one is a proclaimed offender, in the private complaint/counter- version by the petitioner side, the complainant party has been summoned. Petitioner is in jail for the last more than one year and the trial has not yet commenced, In the afore-referred circumstances, the question of petitioner's guilt would require further enquiry and he has made out a case for bail. Consequently, this petition is converted into appeal and allowed. Subject to his furnishing bail bonds in the sum of Rs,, 100,000/- with two sureties in the like amount, to the satisfaction of the Trial Court, petitioner shall be released on bail.
11. Before parting with this order, we may, however, observe that if petitioner, at any stage, during trial misuses the concession of bail, in any manner, it would be open for the Trial Court to cancel the bail after issuing notice and hearing him.