' SHAHNAWAZ TARIQ, J.---Through captioned post-arrest bail application, applicant Mohammad Shah alias Mudasar Shah has impugned order dated 17.01.2015, passed by the Court of II-Additional Sessions Judge, whereby bail application preferred by the applicant was declined.
2. The relevant facts spelt out from instant bail application are that complainant SHO Waheed Murad Pathan has lodged FIR on 04.06.2014, stating that one Sikandar Ali alias Mohiuddin Shah after committing murdered of his sister Mst. Aisha alias Nida Bibi wife of Ali Raza Shah, lodged FIR No,32 of 2014, under sections 302, 147, 148, 149, 109 and 337-H(2), P.P.C. Against Ali Raza Shah and others, wherein Muzamil Hussain Shah and Mohammad Shah alias Mudasar Shah were shown as witnesses, who had falsely supported the statement of complainant, while independent witnesses namely Azizullah, Imdad Hussain Gabole, Haji Sendhal Pitafi and Abdul Raheem Chanar, have deposed that due to family dispute over land, on 25.05.2014, at 0030 hours, Sikandar Ali alias Mohiuddin Shah and his brothers Muzamil Hussain Shah and Mohammad Shah alias Mudasar Shah, all duly armed, on instigation of their father Fakhuruddin Shah, had murdered their sister Mst.
Aisha alias Nida Bibi aged about 23/24 years by making fires of Kalashnikov and pistols upon her, to get possession of the disputed land. Case vide FIR No,32 was referred to the higher officers for its cancellation and after obtaining such approval, summary report for cancellation of case in "C"- Class, has been submitted before the concerned Magistrate. Complainant on behalf of the State, has lodged instant FIR against accused Sikandar Shah alias Mohiuddin Shah, Muzamil Hussain Shah, Mohammad Shah alias Mudasar Shah and Fakhuruddin Shahfon committing offence punishable under Sections 302, 109, 24 and 34, P. P.0 .
3. Learned Counsel for applicant contended that applicant is innocent and has been falsely implicated in the instant crime by the police; that deceased was real sister of applicant, who was murdered by her husband Ali Raza Shah and others, against which FIR was lodged by Sikandar Ali alias Mohiuddin Shah; that Investigating Officer after conducting investigation submitted report under "C"-Class before the concerned Magistrate but prior to the passing any order by the Magistrate, SHO Police Station Jarwar lodged FIR for murder of same deceased against applicant and others on behalf of State; that after submission of Challan in both cases, charges have also been framed against accused persons by the same Court and both cases are pending for recording of evidence of PWs; that in view of order passed by Judicial Magistrate, SHO could not lodge subsequent FIR treating the earlier FIR as false; that applicant was arrested on 12.06.2014, but prosecution has failed to examine even a single witness in support of its case; that accused persons nominated in the FIR No,32 of 2014, have already been granted bail, while applicant is behind bars; that there are two different versions of the case and same require further inquiry; that one Siraj-ul-Hassan Shah, real uncle of applicant, has impugned order dated 19.06.2014, passed by the Court of learned II-Civil Judge & J.M Mirpur Mathelo, which is sub-judice before this Court.
Learned counsel relied on case of Shoib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCM R 1845), Naimat Khan v. The State (2010 PCr.LJ 964) Abdul Rahim v. The State (2013 YLR 2534), All Shaharyar v. The State and another (2008 SCM R 1448), Gut Din v. The State and another (2011 SCM R 1997).
4. While controverting the above submissions, learned counsel for Ali Raza Shah, husband of deceased, nominated as accused in crime No,32 of 2014, has vehemently opposed the contentions raised by learned Counsel for applicant, and contended that applicant had committed murder of the deceased lady, hence he is not entitled for grant of bail, however, he admitted that accused persons cited in FIR No,32 of 2014, are enjoying the bail.
5. Learned APG considering the above facts and circumstances, extended no objection for grant of bail.
6. Perusal of the material available on record emanates that there are counter versions regarding commission of murder of Mst. Aisha alias Nida. At the first instance, one Syed Sikandar Ali alias Muhiuddin Shah lodged FIR No,32 of 2014, under section 302, P.P.C. Against accused Ali Raza Shah, Hussain Raza Shah, Tayab Raza Shah, and two unidentified persons. It is significant to mention that after conclusion of investigation of the crime No,32 of 2014, Investigating Officer submitted summary report in "C"-Class before the concerned Magistrate, but during the pendency of same for passing order by the Magistrate, SHO P.S. Jarwar without waiting for the result of summary report, lodged FIR No,36 of 2014, under section 302, P.P.C. On behalf of the State on 04.06.2014, against complainant party of FIR No,32 of 2014. Conversely, learned Magistrate vide order dated 19.06.2014, declined said summary report submitted by the Investigating Officer and directed him to submit Challan. Subsequently, Challans in both FIRs were submitted before the Magistrate which were accepted, and now both cases are pending before the Court of learned II-Additional Sessions Judge, where charges have also been framed against respective accused persons.
7. It is well settled that cases of conflicting-versions arising from the same incident, where set of allegations put forward by the complainant in his FIR, was controverted by the opposite party in their subsequent FIR, bail should be granted on the ground of further inquiry as contemplated under S.497(2), Cr.P.C., because it is for the trial Court to determine and fix the responsibility of guilt after recording the evidence of the parties, as to which of the versions is correct and believable, and which of the party is transgressor. In the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (supra), the honourable Supreme Court has observed that case of two counter-version arising from the same incident, one given by complainant in FIR and the other ' given by the opposite party, such cases were covered for grant of bail on the ground of further enquiry as contemplated under S. 497(2), Cr.P.C. In the case of Ali Sheharyar v. The State (supra), the honourable Supreme Court has observed that case was counter-version where the accused party had also sustained injuries. Tentative assessment of the material on record had created some doubt about the person responsible for the injuries caused to the deceased, benefit of which was to be extended to the accused even at bail stage, as the same had to be determined by the Trial Court on minute appreciation of entire evidence. In the case of Gul Din v. The State and another (supra), the honourable Supreme Court has observed that occurrence was a sudden and free fight in which participants of both groups sustained injuries. Accused was not attributed any specific role and complainant through supplementary statement alleged that fatal injury was caused by accused. Counter version of the occurrence had been put forward by Accused.
Occurrence was not pre-mediated and it was case of further probe and inquiry.
8. Indeed, while dealing with the question of bail, the deeper appreciation of the evidence is not permissible under the law and plea of bail should be decided on the tentative assessment of the available material. Conversely, accused persons cited in the FIR No,32 of 2014, under section 302, P.P.C. Have already been granted bail by the learned trial Court, while applicant is behind bars for more than 22 months and till date no witness has been examined by the prosecution to substantiate the charge against him. The delaying attitude of complainant also reflects that complainant is not interested in early disposal of the case but he wants to keep the applicant behind the bars. Admittedly, investigation has been completed and applicant is no more required for investigation, thus further detention of applicant will not serve any useful purpose.
9. Considering the above facts and circumstances, applicant Mohammad Shah alias Mudasar Shah has succeeded to make out a case for grant of bail on the ground of further inquiry as envisaged under Section 497(2), Cr.P.C., hence applicant is admitted on bail subject to the furnishing solvent surety in the sum of Rs,100,000/- (Rupees One lac) and PR bond in the like amount to the satisfaction of trial Court.
10. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits.