SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Apprehending their arrest at the hands of police, by way of instant petition, the petitioners Asif Ali, Ahmad Uman and Afnan Ali seek their pre-arrest bail in cross version under sections 337-A(iii), 337-F(i), 427, 148, 149, P.P.C. in case FIR No.410/2019, dated 04.05.2019, offence under Sections 452, 147, 149, P.P.C., registered with Police Station, Bata Pur, District Lahore.
2. Allegation against the petitioner, in brief, as per contents of the cross version is that on 03.05.2019 at 8:00 p.m. they along with his co-accused launched assault upon the complainant's party of cross version.
3. Learned counsel for the petitioners submits that the petitioners are innocent and have falsely been roped in the instant case against the actual facts and circumstances. It is argued that there is delay of four months and two days in lodging the cross version for which no plausible explanation has been rendered by the prosecution. It is next argued that the story contained in the cross version is against the facts. Further contends that the complainant party of the cross version is aggressor party who attacked upon the petitioners party and during the said occurrence the complainant party of cross version injured the petitioner party. Adds that this is case of two versions and this would be determined at trial stage. Such circumstances, it is contended make the case against the petitioners to be one of further inquiry falling within the ambit of section 497(2), Cr.P.C. Adds that the offence alleged against the petitioners does not attract the prohibition contained in section 497(1), Cr.P.C. In such circumstances it is argued that the petitioners are entitled to the relief prayed for by means of instant petition.
4. Contrarily learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed this petition with vehemence. It is argued that the petitioners are named in the cross version with specific allegation. It is submitted that this is a pre-arrest bail and the same can be granted sparingly.
5. Arguments advanced from pro and contra have been heard. I have also gone through the record available on file.
6. There is no denial to this fact that the petitioners are named in the cross version, but this Court has to see from the facts and circumstances whether case against the petitioners to the extent of grant of relief prayed for is made out or not. There is delay of four months and two days in lodging the cross version for which no plausible explanation has been rendered by the prosecution. It is case of cross version as petitioner No. 1 has lodged an FIR No. 470/2019 dated 04.05.2019 under sections 452, 147, 149, P.P.C. against the complainant of cross version and other co-accused and it would be determined after recording of prosecution evidence that which party is aggressor and which is aggressed upon. Such circumstances itself make the case against the petitioner to be one of further inquiry falling within the ambit of section 497(2), Cr.P.C. Liberty of a person is a precious right guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, which cannot be taken away until and unless there is cogent reasoning. It is a settled principle of law that the Court can even look into and evaluate the mala fides from the facts and circumstances of the case, which apparently is oozing in this case from the facts and circumstances discussed above. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v. The State (2005 SCM R 784). Moreover, keeping in view the dictum of law laid down by the august Supreme Court of Pakistan in a reported case Meeran Bux v. The State and another (PLD 1989 SC 347) the Court while deciding the pre-arrest. bail can touch upon the merits of the case.
The culpability of the petitioners would be determined by the learned trial court during trial after recording of evidence.
7. For the foregoing facts and circumstances, this Court is persuaded to' accept the petition.
Resultantly by allowing this petition, ad-interim bail already granted to the petitioners in terms of order dated 13.12.2019 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.