Through this petition, the petitioner has sought post arrest bail in case FIR No. 19/10 dated 17.01.2010 under Sections 302, 324, 337- A(i)(ii), F(i), F(iv), L(ii), 34, 148/149 PPC registered at P.S. Kot Mithun, District Rajanpur.
2. Briefly, stated the allegations as contained in the FIR against the petitioner and the co-accused are that on 17.01.2010 at about 8:15 a.m. the complainant Muhammad Shabbir alongwith his brother Muhammad Khalid and his father Muhammad Anwar were constructing the demolished boundary wall of their house when the petitioner alongwith Shah Jahan, Muhammad Ramzan and Shaban came there while armed with Sotas. They were accompanied by Bilquees and Shamim wives of the above named Muhammad Ramzan and Shah Jahan. They were also armed with Sotas. The petitioner and others raised "Lalkara" that the complainant etc. would be taught a lesson for interfering in the plot. The co-accused Shah Jahan give a Sota blow to Muhammad Anwar deceased hitting him on right side of his head. The petitioner gave a Sota blow to him on the left side of the head. whereas Shaban hit Muhammad Khalid brother of the complainant on left side of his head and Ramzan hit him on right side of his head. The female accused also injured Sofia Parveen and Khursheed Mai. The petitioner also gave a sota blow on middle of the head of the deceased Muhammad Anwar and Shah Jahan hit him on the posterior part of head. 'rue hue and cry raised by the complainant party attracted Abdul Shakoor and Iftikhar. Ali besides the neighboured and they saved them from the clutches of the accused. As per FIR the petitioner was also injured by the complainant party and Shah Jahan etc. took away the licensed gun of the deceased during this scuffle as the same had fallen down. The motive behind the occurrence was that there was a dispute of plot about which civil suits were pending.
3. The learned counsel for the petitioner argued that, the post mortem report contradicts the ocular account. There is no injury on the middle of the head. Actually, a civil suit about the plot was pending between the parties and an injunction had also been issued in favour of the accused party. The complainant party in violation of the injunction started raising construction as admitted by them in the FIR. The licensed gun of the deceased mentioned in the FIR was used by the complainant party and the petitioner was injured by them as he received fire arm injuries. 'His MLC placed on the record shows that soon after the occurrence he was got medically examined by the police on 17.01.2010 at 8:50 a.m. The learned counsel maintained that even the pictorial diagram, copy of which has been attached with the petition shows that no injury was found in the middle of the head of the deceased. The fatal injury i.e. fracture of the right side of the skull was not attributed to the petitioner. The complainant was the aggressor who in violation of the injunction issued by the Court were raising construction at the spot. The petitioner get a cross-version recorded and the SHO filed report under Section 173, Cr.P.C. wherein the police after thorough investigation reached the conclusion that the complainant was not present at the spot at the time of occurrence and the injured witness Khalid Hussain did not appear before the police and did not get his statement recorded under Section 161, Cr.P.C. and he is absconder. Even the learned Addl: Sessions Judge in his order dated 07.07.2010 observed that cross-version and the main case are being processed according to law after framing of charge and 6/7 witnesses have been recorded. The learned counsel contends that the Court had already taken the cognizance of the cross-version so any subsequent findings as a result of subsequent investigations would not change the fate of the case. It would rather made it a case of further inquiry. Since the petitioner Imran had been injured by fire arm by the complainant party there was no occasion for him to give Sota blows to the deceased. The learned counsel maintained that there is no progress in the trial and it is not likely to be concluded in the near future. He maintained that commencement of trial is no ground for refusal of bail if the accused was entitled to be released on bail on merits. In support of his arguments, he has referred to 2011 SCM R 161 and 2009 SCM R 324 and maintained that it was yet to be determined during the trial as to which party was aggressor. So, being a case of further inquiry the petitioner is entitled to bail.
4. The learned D.P.G. assisted by the learned counsel for the Respondent No,2 vehemently opposed the petition and argued that fatal injuries are attributed to the petitioner. He was present at the spot and was arrested. The injured Khalid Hussain was medically examined but his statement was not recorded under Section 161, Cr.P.C. by the police and the negligence of the police cannot be fatal for the prosecution case. At bail stage only tentative assessment is to be made and deeper appreciation of facts and evidence is not desired. It is a promptly lodged FIR. The cross-version was discarded in subsequent investigation. However, it is for the Court to agree to the cancellation report or not. The recovery has already been effected. It is a day light occurrence and the FIR was lodged promptly. The trial is in the progress and at the most the learned trial Court can be directed to conclude the trial within the stipulated period by expediting the same.
5. I have considered the arguments advanced from both the sides.
6. It is undoubtedly a case of two versions. The complainant party was armed with a licensed gun and it was used in the occurrence as is evident from the medico legal certificate of the petitioner Imran who received fire arm injuries and this fact has even been admitted in the FIR that the complainant party inured him. It is also not denied that civil litigation was pending and injunction had been issued by the Court in favour of the accused party. Incomplete challan of the cross- version of the petitioner had already been submitted before the Court wherein it was opined by the I.O. that the complainant was not present at the place of occurrence and there is also no statement of the injured Khalid Hussain under Section 161, Cr.P.C. who did not appear before the police. So, all these facts make it a case of further inquiry. It is yet to be determined as to who was the aggressor. The commencement of trial is no ground for refusal of bail as observed in 2011 SCM R
161. The deeper appreciation of evidence is not required at this stage lest it should prejudice the case of any of the parties. The trial is not likely to be concluded in the near future as it is a case of two versions and two challans have already been submitted before the court and charge has been framed in both the cases as pointed out by the learned Addl. Sessions Judge in his order dated 07.07.2010. In these circumstances, I find it a fit case for grant of bail being a case of further inquiry on several aspects. The petitioner is thus admitted to bail subject to his furnishing bail bonds in the sum of Rs,5,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.