' NOOR-UL-HAQ N. QURESHI, J.---Through this single order, both the above bail petitions are being disposed of, as same are the production of FIR No,22/2013 under sections 302/324, 148/ 149, P.P.C.
Dated 13-1-2013 registered at Police Station Shahzad Town, Islamabad.
3. Facts of the case are that the complainant lodged above FIR alleging therein that on 13-1-2013 at 7-15 p.m., when complainant along with his uncles namely Muhammad Asghar, Muhammad Najeeb and one Qaisar Zaman were present, at their land, the accused Allah Ditta armed with dagger, already hiding there along with Fahim armed with pistol, Waseem armed with dagger, Saqib armed with dagger, Impran/petitioner and two unknown persons armed with pistol and Dandas raised 'Lalkara' that they will teach the complainant party a lesson for filing case against them regarding land and attacked the complainant party, which resultantly caused severe fire arm and dagger injuries to the members of the complainant party, where-after, uncle of the complainant namely Muhammad Asghar succumbed to the injuries sustained during the occurrence, while he was admitted to Benazir Hospital, Rawalpindi.
4. The petitioner applied for bail after arrest, which was dismissed by the learned Sessions Judge- East, Islamabad vide his order dated 5-12-2013, hence bail petition of petitioner Imran.
5. On the other hand, another petition for bail after arrest has also been filed by complainant of above FIR namely Muhammad Qasim Zafar, as he was arrested after recording - cross version of other side by the 10, on the application of one Allah Ditta, wherein it was alleged that on 13-1-2013 at about 7-00 p.m., he received call from Mst. Pari Jan (two whose husband, the complainant had sold the house), who informed that some persons have illegally entered and are trying to get the possession of house. On this, when complainant party reached there, the present petitioner namely Muhammad Qasir Zafar along with co-accused Asghar, Shokat and some unknown persons armed with deadly weapons attacked and severely injured the complainant and his companions, hence Rupt No, 73 dated 28-1-2013.
6. The petitioner filed pre-arrest bail, which was declined by the learned Additional Judge-East, Islamabad vide his order dated 5-12-2013.
7. It has been contended by Raja Muhammad Nadeem Kiyani, learned counsel for the petitioner namely Imran/brother of complainant of cross version that allegation against the petitioner is false, frivolous and baseless; that petitioner is innocent and has no connection whatsoever the commission of instant offence; that case of co-accused Fahim whose bail was rejected by this Court, was on totally different footings than petitioner's case. The complainant party is basically the aggressor, as they had launched murderous attack upon the petitioner and his family, resultantly the petitioner's brother received fire arm injuries and the petitioner himself caused injuries on his head. Thereafter, the petitioner's brother lodged cross version against the complainant party. He has further argued that despite arrival of the petitioner to the police station and thereafter to the Hospital, the police did not comply with the provisions of section 154 Cr.P.C. And registered above false FIR, which establishes mala fide on the part of the police; that investigation of the case is complete and petitioner is no more required for further investigation; that the present case is of further inquiry into the guilt of the petitioner; that no recovery has been made from the possession of the petitioner, only fake recovery has been planted upon him for his involvement in the present case; the petitioner is previously non-convict; the petitioner is behind the bars since his arrest. In the end, learned counsel has prayed for concession of bail to the present petitioner and opposed the bail of complainant namely Muhammad Qasim Zafar.
8. On the other hand, it has been argued by the learned counsel for the petitioner Muhammad Qasim Z afar/ complainant of above FIR that the - petitioner is innocent and has wrongly been implicated in view of cross version, which was lodged after 15-days of institution of above FIR; that story narrated in the cross version is false and vexatious; that names of all the relatives of complainant were maliciously incorporated in so-called cross version; that the cross version is nothing but a counterblast to harass the petitioner/ complainant of above FIR; that place of occurrence, manner of occurrence and result of occurrence is suggestive of the fact that other party was aggressor; that the contention of other party is not supported by independent medical evidence, initially medical reports were managed; that in cross version bail after arrest of the rival party has been rejected by the Hon'ble Lahore High Court; that the petitioner is no more required for the purpose of investigation. Learned counsel, in support of his arguments has relied upon 2008 PCr.LJ 1, 2007 PCr.LJ 917, 2000 PCr.LJ 1229 and 2005 PCr.LJ 596. After his arguments, learned counsel has prayed for bail to the petitioner/complainant of above FIR, while has opposed the bail petition of accused Imran.
9. Learned DAG has opposed both the petitions with the assertion that both are nominated in above FIR with specific role.
10. I have heard the arguments, perused the record as well as relevant provisions of law and the authorities referred.
11. From the record, it appears that allegation against the petitioner Imran is of raising 'Lalkara' while armed with 'Danda'. From the record, it appears that no other role has been assigned to the present accused/petitioner Imran. Later on, he was alleged to have caused Danda blow to deceased Asghar on the basis of statement under section 161, Cr.P.C. Got recorded by one Najeeb.
With such allegation levelled in the statement under section 161, Cr.P.C., which is not supported by medical evidence/postmortem report, I feel that case of petitioner Imran requires further inquiry into his guilt.
12. As far as the case regarding petitioner/complainant Muhammad Qasim Zafar is concerned, who was also injured and as per his statement, above FIR was lodged, whereas in the cross version, he has been shown at the scene of incident armed with deadly weapon along with two other unknown persons. Later on, he was alleged to have caused butt blow on the head of injured Waseem, which injuries were later on opined by the Medico Legal Officer as falling under sections 337A(i) and 337A(ii), P.P.C. From the prosecution story, it reflects that he fired with pistol at Nasim which missed. The allegation of causing injury with the butt blow of the pistol on the head of Saqib finally opined by the Medico Legal Officer falling under section 337A(i), P. P.0 . The medical certificate issued in favour of injured Waseem was later on challenged before the Medical Board constituted on the application moved by the petitioner party. The Medical Board finally formed an opinion that possibility of self-inflicted wound 'cannot be ruled out.
13. Under the circumstances narrated above, when the allegation against the petitioner Muhammad Qasim Zafar is limited only to the extent of offence falling under section 337A(i), P.P.C.
Regarding injuries caused to both Waseem and Saqib, which offence, by itself, is punishable for two years and same is bailable.
14. So far the firing made at Naseem, the same was admittedly missed, which leads towards ineffective fire and same can be determined at the trial stage, when such missed fire did not hit to any other thing or person.
15. Moreover, though the cross cases between the parties is not hard and fast rule for considering bail to both the parties, but under some peculiar circumstances, this could be exercised when circumstances prevail for considering such aspects indicated above.
16. In view of what has been discussed above, both the above titled bail petitions are allowed.
Consequently, both the petitioners are ordered to be enlarged on bail, if they furnish bail bond in the sum of Rs,2,00,000 (Rupees Two Lacs) each with one surety each in the like amount to the satisfaction of learned trial Court.
17. In the end, it is pertinent to mention here that above observations are tentative in nature and learned trial Court needs not to be influenced by the same.