' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Naseem Ullah petitioner by filing the petition in hand seeks his release on post-arrest bail in the cross-version recorded in case F.I.R. No,226, dated 6-3- 2012, registered under sections 302, 324, 148 and 149, P.P.C. With Police Station Ferozewala, District Sheikhupura.
2. This is second post-arrest bail application of the petitioner, who had withdrawn his first petition from this Court on 7-6-2012 after arguing the case at some length. This petition has been filed on the ground that this Court while deciding Criminal Miscellaneous No,14846-B of 2012 vide order dated 5-12-2012 had disallowed bail to Muhammad Hanif, an accused of the above said F.I.R., observing that causing of injury to Ghulam Murtaza by the complainant of the F.I.R. (Naseem Ullah) is unimaginable as the deceased Ghulam Murtaza was his (complainant) party man. It is the submission of the learned counsel for the petitioner that deceased Ghulam Murtaza had received single fire shot and according to the version of the present petitioner said injury was caused by Muhammad Hanif to which the bail has been refused by this Court while in the cross-version the same injury has been attributed to the present petitioner as such the benefit of the observation made in the bail application of Muhammad Hanif goes to the present petitioner.
3. The facts of this case briefly stated are that Naseem Ullah at about 11-00 a.m. Reported to the S.H.O. Police Station concerned that he along with Anwar, Noor Muhammad and Ghulam Murtaza had come to Sessions Court at Ferozewala to attend a case and when he came out of the Court room, Muhammad Bashir, Muhammad Hanif and Umair Asif along with two others encircled them while Umair accused had caused Jappha' to Ghulam Murtaza and Muhammad Hanif on direction of Muhammad Bashir fired at Ghulam Murtaza hitting on the right side of his head. Rest of the accused also gave beating to the other men of the party of the complainant and also resorted to the aerial firing. Against these allegations Muhammad Hanif having attribution of fatal fire applied for post-arrest bail, which was dismissed as stated above.
4. Muhammad Bashir one of the accused of the F.I.R. Shown to be armed with pistol in the F.I.R., made his cross-version in the aforesaid F.I.R. Attributing the fire to the present petitioner Naseem Ullah to Ghulam Murtaza and also another fire made at the complainant of the case hitting on his right shin. It was stated by the cross-versioner that after firing at him (Muhammad Bashir) Naseem Ullah had fired at his own man Ghulam Murtaza.
5. Learned counsel for the petitioner has vehemently argued the fresh ground with the submission that when this Court had given its opinion that Muhammad Hanif had fired at Ghulam Murtaza then the same fire cannot be attributed to the present petitioner and the benefit of this is to be extended to the petitioner. He added that in this manner, the fire attributed to the petitioner at Ghulam Murtaza needs further probe. He has also taken the benefit of the findings recorded by the Investigating Officer, who did not recommend the prosecution of the petitioner and during interrogation he was unsuccessful in recovering any crime weapon at the instance of the petitioner. In this background learned counsel for the petitioner prayed for the grant of bail.
6. The petition has been opposed vehemently by the learned DPG, assisted by the learned counsel for the complainant and has commented upon the character of the petitioner by submitting that he has the criminal history as huge number of criminal cases have been registered against the petitioner Naseem Ullah, thus there is every likelihood that after having the relief of bail from this Court, he may tamper with prosecution evidence. It is further argued that in fact the fire was made by the petitioner at his own party man in order to equalize the injury caused by him to the cross- versioner thus the petitioner is not entitled for any relief.
7. Parties heard and record perused.
8. According to the contents of the F.I.R. Muhammad Hanif had made a fatal shot at Ghulam Murtaza and according to the story narrated by the cross-versioner the same fire to Ghularn Murtaza was made by present petitioner. This Court while refusing bail to Muhammad Hanif observed that one fire cannot be attributed to two persons and further that it is very rare phenomenon that a person had made fire at his own party man to equalize the injuries caused by him to the other person. This position remains intact up-till now when it is found that the deceased had received one fire and according to cross-version the said fire was made by the petitioner whereas the stance of the petitioner is that Muhammad Hanif, the party man of cross-versioner had fired at the deceased. This question as to whose fire proved fatal to the life of deceased Ghulam Murtaza is the matter of trial and at this stage no comment can be made lest it may not prejudice the case of either party. In this connection suffice it to say that it falls within the domain of learned trial Court to determine whether Muhammad Hanif is responsible for the death of Ghulam Murtaza or it is Naseem Ullah, present petitioner. Further non-recommendation of prosecution by the Police in respect of the present petitioner as well as non-recovery of crime weapon, are the supportive facts to this observation.
9. So far as the contention of learned counsel for the complainant that the petitioner is the history sheeter having many cases at his credit is concerned, it is stated that as per version of the learned counsel for the petitioner in most of the cases the petitioner has been acquitted while in other cases he was not recommended for prosecution. Without indulging into this controversy, it is found that the petitioner has never been convicted in the cases referred by the learned counsel for the complainant nor the learned counsel has bothered to place on record any such result to prove his stance. The .Other objection of the learned counsel for the complainant is that after withdrawal of his first petition, second petition can only be entertained on the fresh ground is untenable for two reasons, firstly that at the time of withdrawal of first bail petition by the petitioner On 7-6-2012, the order dated 5-12-2012 passed in the bail petition of Muhammad Hanif was not in field and secondly that the judgment of the apex Court delivered on 3-1-2013 in the case of Muhammad Siddique v.
The State and another (Criminal Petition No,896-L of 2012) is prospective in its operation and cannot be applied retrospectively. Keeping in view the facts that the case of the present petitioner squarely falls within the ambit of section, 497(2), Cr.P.C, and C he is found to be entitled for the concession of bail.
10. For the foregoing reasons, the petition is allowed and Naseem Ullah petitioner is admitted to bail on furnishing of bail bonds in the sum of Rs,500,000 (Rupees Five Lac only) with two sureties each in the like amount to the satisfaction of learned trial Court.