' YAHYA AFRIDI,J.- Usman son of Muhammad Khalid Shaheen, seeks his post arrest bail in case F.I.R.
No,645 dated 15-10-2013, for offences chargeable under Sections 302/324/34 of Pakistan Penal Code, 1860 ("PPC"), registered in Police Station Nowshera Cantt: ("F.I.R.").
2. Brief and essential facts of the case, according to the F.I.R., are that Mushtaq Ahmad complainant reported the matter to the police 'at DHQ Hospital, Nowshera Kalan, on 15-10-2013 at 17.35 hours, to the effect that on the day of occurrence, he along with his brother Muhammad Irshad and nephew Shahid Jamal were standing in front of the house of his brother Muhammad Iqbal, when in the meantime Muhammad Khalid Shaheen, Usman and Arsalan, his co-villagers, armed with deadly weapons, started firing at them; that with the fire shots of Usman, his brother Muhammad Irshad was hit and died on the spot, while Ismail, a passerby child, was also hit and injured and the rest were escaped unhurt; that the occurrence was witnessed by Shahid Jamal. Motive for the offence was the altercation between the parties of the last day; that the delay in lodging the report was stated that the dead body of the deceased was first taken to the hospital and thereafter the report was made.
3. The instant case is stated to be a cross case of F.I.R. No,646, it would be appropriate to mention here the facts of the said F.I.R., which was lodged by Muhammad Khalid Shaheen, complainant, in the Casualty Ward of DHQ Hospital, Nowshera KaIan, on 15-10-2013 at 17.50 hours, to the effect that on the eventful day, he was present in the thoroughfare outside his 'Hujra', when in the meanwhile Muhammad Irshad, Mushtaq, Abid, Zahid, Shahid along with two unknown accused, armed with deadly weapons, came and started firing at him, with which he was hit on the knee of his left foot.
Motive for the occurrence was that the complainant was restraining the accused from aerial firing.
4. Valuable arguments of the learned counsel for the parties were heard and the record perused with their able assistance.
5. The main thrust of the learned counsel for the petitioner to seek post-arrest bail was that there were two versions and thus, the petitioner be granted bail.
6. As far as the principles governing grant of bail in 'cross cases' is concerned, the judicial consensus, depending on the peculiar facts and circumstances of each case, are as follows:- I. To constitute a cross case, mere assertion of a counter case is not enough. Courts are to tentatively assess that the parties, venue and the transaction, prima facie, lead to the result of a single incident narrated differently by the opposing party. The rationale being frivolous and false counter cases, which can exaggeratedly be set up by the opposite party do not gain an advantage of the general rule and benefits arising out of a counter case.
Arif Din's case (2005 SCMR 1402), Mushtaq's case (2013 YLR 2046) and Liaqat Ali's case (2013 SCMR 1527) .
II. In cases of counter versions arising from the same incident, one given by the complainant in the F.I.R. And the other given by the opposite party, bail is granted as a rule on the ground of further inquiry for the reason that the question as to which version is correct to be decided after recording of pro and contra evidence B during the trial and also to ascertain which party was the aggressor or was aggressed upon and refusal of bail in such cases is an exception.
Fazal Muhammad's case (1976 SCM R 391), Shafiqan's case (1972 SCM R 682) and Khalid Mahmood's case (2013 SCM R 1415) .
III. Exception to the rule of grant of bail in cases of counter versions C or cross cases, and in cases where specific and effective role is attributed to the accused, whereby, prima, facie, material on the record clearly suggests the connection of the accused with the commission of the offence.
Nisar Muhammad Wassan's case (1992 SCM R 501) .
IV. In counter versions of opposing parties, without specifying the effective role in causing the fatal injury leaves room for consideration to render a case within the purview of further inquiry, as provided under section 497 of Cr. P. C.
Jaffar's case (1980 SCM R 784) and Muhammad Aslam's case (1997 SCM R 251) .
V. In cross cases, wherein one party is granted concession of bail and similar treatment be also rendered to the other side.
Hamza Ali's case (2010 SCMR 1219) and Muhammad shag's case (2013 YLR 1133) .
7. When we review the facts of the present case, in the light of the aforementioned principles, relating to cross cases, it is noted that not only are the parties, but the time and place of occurrence are prima facie the same and bring the case within the purview of the same being cross cases.
8. As far as, falsivity of the counter version is concerned, it is noted that there are fire arm injuries on both sides, hence, tentatively assessed the counter version cannot be considered a mere fabrication to seek any advantage. Hence, the petitioner case crosses the initial threshold of bringing the case within the purview of a cross case and thereby to be entitled to be considered for grant of the concession of bail, as of right.
9. Now, we move on the contention vehemently argued by the learned counsel for the complainant that the case of the petitioner, even if the case is considered as a cross case, it would fall within the exception to the rule of grant of bail as of right, as the petitioner has been directly charged for the effective fire, which resulted in the death of the deceased Muhammad Irshad. The contention is very forceful. However, it is noted that the main accused from the complainant party, who has been charged for fire arm injury in F.I.R. No,646 have been released on post-arrest bail in the said case and thus, denying the same to G the present petitioner, would not be legally appropriate.
Hence, this Court is of the view that the petitioner would not fall within the cases of exception to the rule of grant of bail in cross cases.
10. Accordingly, for the reasons discussed hereinabove, this bail application is allowed and the petitioner is ordered to be released on bail on furnishing bail bonds in case he furnishes bail bonds in the sum of Rs,100.000/- (one lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, who shall see that the sureties are local and men of means.
11. Before parting, this Court finds it necessary to remind the trial Court that the observations rendered by the High Court while disposing bail applications are not to be considered during the trial of the accused. In this regard the august Supreme Court of Pakistan in Shuaib Mehmood Butt v.
Iftekharul Haq (1996 SCMR 1854) has rendered clear guidance, which is to the effect that:- "However, we would like to point out in no certain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the law at the time of disposal of the case, which of course it is needless to say, is the function of the trial Court."
' The above are the reasons for short order of this Court dated 14-3-2014.