Dr. Khurshid Iqbal, J
1. By this single order, I propose to record my opinion in the subject bail petitions, as both are the offshoots of one criminal case of which two versions have been reported by the parties.
2. In short, facts as per the FIR registered by Niaz Muhammad (first party) against Momin Khan, Abdullah and two others (second party) are that on 20.05.2023 at 19:40 hours, he, alongwith injured Yasir Muhammad, Faisal Muhammad, Ziad Muhammad and Nouman Muhammad were present in the path known as Pakha Laar, Dagai. Meanwhile, the petitioners-accused Momin Khan and Abdullah, alongwith co-accused Naveed Ullah and Ubaid Ullah, duly armed with pistols, came there and started altercation with them. During the altercation, the accused started firing at them with murderous intention through their respective pistols. As a result, the son and nephews of the complainant were hit and injured, while he luckily escaped unhurt. Motive for the offence is alleged to be blood feud between the parties. The occurrence is stated to have been witnessed by the son and nephews of the complainant including other people present at the spot. It is worth noting that initially, the case was registered under section 324/34 PPC. Later on, Yasir Muhammad and Nouman Muhammad (from first party) succumbed to their injuries. Hence, section 302 PPC was also added to the case in hand.
3. Momin Khan registered a cross report in the same police station in the shape of daily diary No.21, dated 20.05.2023, against Niaz Muhammad, etc. (second party). In that report made at 20:20 hours, it was alleged that on the eventful day at Sham Wela, he, alongwith his cousin Abdullah had gone to Dagai bazaar for shopping. Meanwhile, accused Niaz Muhammad, Ziad Muhammad, Muhammad Islam, Faisal, and Yasir, duly armed, came there and started firing at them with murderous intention. As a result, he, alongwith his cousin Abdullah including a passerby, Hazrat Usman, were hit and injured. Motive for the occurrence is stated to be previous blood feud between the parties.
4. Arguments of Mian Fahim Akbar Advocate, representing the first party, Mr. Muhammad Ali Khan Advocate, representing the second party, and Syed Sultanat Khan, Assistant Advocate General, representing the State, heard. Record perused.
5. Learned counsels for both the parties agree, as also the record demonstrates, this is a case of cross version. The thrust of the prevailing judicial opinion on the consideration of bail plea in a cross version is that the mere existence of a cross version of a criminal case is not a compelling reason for grant of bail. The latest judicial pronouncement on the view has been expressed by the Supreme Court in Muhmmad Rafique (2022)[1] The Hon' ble Court also observed, "[W]here the court remains unable to determine even tentatively, which one of the parties is aggressor and which one is aggressed upon, that the case against both parties falls within the scope of further inquiry under section 497(2), Cr.P.C.[2]"
6. It may be stated here that in this case, the Supreme Court cancelled bail allowed by the High Court. Reference may also be made to Nisar Muhammad Wassan (1992)[3] and Arif Din (2005)[4].
Recently, this court has also followed the same view on cross version.[5]
7. In view of the above legal principle, it follows that a case of cross version has to be seen albeit tentatively to determine which party is the aggressor and which party has been aggressed upon. In the case in hand, according to the story narrated in FIR 245, it has been alleged that the second party duly armed with firearm weapons went to the placeChowk Pakha Lar situated in village Dagai--where first party was present. This fact is also borne out from the contents of the DD # 21 in which it has been stated that the second party had gone there to purchase some commodities of domestic use. Then, in the site plan of the case FIR 245, the petitioners Momin Khan and Abdullah have not only been shown present on the spot, but they have also been attributed specific roles.
Momin Khan and Abdullah have been shown at points # 8 and 3 respectively, for causing fire arm injuries to Ziad Muhammad and Yasir Muhammad; the latter having succumbed to his injuries.
Interestingly, even in the site plan of the DD # 21, they have been shown at the same positions though with different numbers: Momin Khan at point # 3 and Abdullah at point # 1. From the crime scene in case FIR 245, recoveries of blood from the place near deceased Yasir Muhammad and 05 empties of .30 bore pistol from the place of petitioner Abdullah, have been made. No such recoveries could be seen as per the site plan in DD # 21. Yet another key aspect is that two persons have been allegedly done to death in the occurrence from the first party. It means that greater damage has been sustained by the first party. In light of the tentative assessment of the material referred to above and other available on the record, the second party prima facie appears to be the aggressor. The punishment provided for the offences in hand are covered by the prohibitory clause of section 497, Cr.PC.
8. Consequent upon the above discussion, the Bail Petition # 432-M/2023--of petitioners Niaz Muhammad, Faisal Muhammad, Ziyad Muhammad and Muhammad Islam--is allowed subject to the condition that the petitioners-accused furnish bail bonds to the tune of Rs.1,00,000/- (rupees one hundred thousand) with sureties each in the like amount to the satisfaction of the trial Court.
The Bail Petition # 433-M/2023--of petitioners Momin Khan and Adullah--is dismissed.
1. Muhammad Rafique v. the State and others, PLD 2022 Supreme Court 694.
2. Hameed v. Zahid, 2011 SCMR 606; Liaqat v. State, 2013 SCMR 1527; Abbas v. Slate, 2017 SCMR 1730. The footnote is the same [3]Nisar Muhammad Wassan and another v. the State, 1992 SCMR 501 [Supreme Court of Pakistan].
4. Arif Din v. Amil Khan, 2005 SCMR 1402 [Supreme Court of Pakistan]
5. Mutahir Gut and another v. The State and another, Crl. M. (BA) # 1161-P/2022, decided on 16/05/2022; Muhammad Tahir v. The State, Crl. M. (BA) #3866-P/2022, decided on 23/12/2022.