MUHAMMAD IJAZ KHAN, J.- This order is directed to dispose of an application filed by the petitioner for grant of post arrest bail in case FIR No. 52 dated 19.01.2025 under sections 302/324/34/449 PPC registered at Police Station, Jalozai District Nowshera read with DD No. 10 dated 19.01.2025 under Section 324/148/149 PPC, wherein he is charged for the murder of deceased Riaz Khan.
2. Arguments of learned counsel for the petitioner and learned counsel representing the State were heard, whereas the complainant despite date by court is not in attendance.
3. The record would show that the instant FIR has a cross version in shape of Daily Diary Report No. 10 dated 19.01.2025. The comparative perusal of the instant FIR and that of the said Daily Diary Report would reveal that in both these reports the time of occurrence, the place of occurrence and the parties are almost the same, therefore, in the given facts, as to who was the aggressor and who was aggressed upon, is to be determined by the learned trial court after recording of pro and contra evidence and thus under the settled jurisprudence the benefit of the same has to be extended to the present petitioner. In a case[1], the Hon'ble Apex Court has held that when there are two versions of the occurrence, it squarely invites the provisions of section 497(2), Cr.P.C calling for further probe into the occurrence. Similarly, in another case[2] the Hon'ble Apex Court has held that it is for the trial court to determine as to who was the aggressor and who was aggressed upon, of course, after recording evidence of the parties. The record further shows that the complainant has suppressed the injuries sustained by the accused-party and as such he has not come up with the true picture and mode and manner of the occurrence. Likewise, in a case[3], the Hon'ble Apex Court has held that the injuries sustained by the petitioner were suppressed by the complainant. In these circumstances, a prima facie doubt has arisen qua the authenticity of the prosecution's case.
4. It is also very astonishing and interesting to note that the learned trial court while granting bail to the accused nominated in Daily Diary Report No. 10 dated 19.01.2025 lodged by petitioner's side had observed that these are cross cases. Similarly, to the co-accused of the instant FIR too, bail was granted on the same ground that these are cross cases, therefore, the present petitioner being accused of the same occurrence could not be deprived of its benefit.
5. Even otherwise, the challan in the case has already been submitted and as such the custody of accused/ petitioner is neither required nor the same would serve any useful purpose. In a case[4], Supreme Court of Pakistan has observed that the basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not.
6. For the reasons recorded above, the instant bail petition is allowed and the accused/petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs. 100,000/- (One Latch Only) with two sureties in the like amount to the satisfaction of the learned Maga / Judicial Magistrate/ trial Court/MOD, who shall ensure that the sureties are local, reliable and men of means.
7. Observations recorded hereinabove are purely tentative in nature and should in no way prejudice an independent mind of learned trial court which needs to appraise the evidence strictly in accordance with law and merits of the case.
1. "Gul Nawab v/s The State & another" reported as 2022 SCMR 547
2. "Saqib & others v/s The State & others" reported as 2020 SCMR 677
3. "Dildar Ahmad v/s The State" reported as 2022 SCMR 264
4. "Resham Khan and another v. The State", reported as (2021 SCAM 2011)