AMJAD ALI BOHIO, J. Applicant/accused Qaim, son of Waryam Junejo (hereinafter referred as "the applicant"), who was involved in case FIR No. 02/2024 registered at PS Mithi wider sections 324, 147, 148, 149, 114, 506, 504 of the Pakistan Penal Code, was denied bail by the Court of the learned Additional Sessions Judge-I, Tharparkar alias Mithi, on 13-03-2024 in Criminal Bail Application No. 68/2024. Subsequently, the applicant has approached this Court seeking the same relief.
2 The allegations against the applicant, as per the First Information Report lodged by complainant Irshad Ali, son of Ameer Ali Junejo on 13-01-2024 at 8:00 PM, are that while he was walking to school at around 8:30, AM, upon reaching near the police post Aamrio, he noticed a white Suzuki vehicle with Registration No. KX-3798 parked on the northern side of the road. In front of the vehicle, the applicant along with his co-accused, armed with hatchets and lathies, were standing on the road.
Upon instigation by co-accused Jani, another co-accused named Ali Hyder struck a sharp-sided hatchet blow to the complainant's head, while Karim Bux administered lathi blows to his knee. At this Moment, Abdul Shakoor, son of Sohrab Junejo, who was coming on his motorcycle to perform duty, witnessed the incident and upon seeing the complainant injured, he returned and raised an alarm. This attracted Muhammad Saleh, son of Muhammad Ashraf, Muhammad Haroon, son of Amir Ali, Abdul Hafeez, son of Aamir Ali, Farooque Ali, son of Aamir Ali, and Muhammad Mudasar, son of Muhammad Haroon to the scene. The applicant then intentionally struck Muhammad Saleh on the head with a hatchet with the intention to cause him fatal harm. Other accused also caused injuries to the aforementioned witnesses at various parts of their bodies. This commotion attracted Muhammad Eidal, son of Veenhal, and Ali Ahmed, son of Aamir Ali, who intervened and rescued the injured party. The injured individuals were taken to PS Mithi and then transferred to Civil Hospital Mithi for treatment. Muhamamd Saleh was subsequently referred to Civil Hospital Hyderabad for further medical attention. Following his treatment, the complainant returned to the police station and lodged the instant FIR.
3. The learned counsel for the applicant argues that there is a counter version of the incident and that the applicant's party also sustained injuries in Crime No. 08/2024, which the complainant did not disclose in the above FIR. He further contends that the FIR mentions an old enmity between the parties, suggesting a potential false implication of the applicant due to this enmity. The counsel asserts that during the incident, three individuals from the applicant's side were injured by the complainant's party, raising questions about who was the aggressor and who was aggressed upon. Additionally, the FIR was lodged with a delay of approximately 1112 hours without a satisfactory explanation. Notably, all co-accused in the same crime have been granted bail.
Regarding the specific allegation against the applicant of causing a hatchet blow to Muhammad Saleh, it is noted that the medical certificate issued by the Medical Officer indicates that the injury sustained by Muhammad Saleh was caused by a hard and blunt substance, not sharp side of hatchet. This discrepancy suggests the need for further inquiry. Based on these arguments, the learned counsel contends that the applicant is entitled to the concession of bail in the circumstances surrounding it. In support of his contentions he has relied upon case law i.e. "Saqib and others v. The State and others" (2020 SCMR 677), "Muhammad Ashraf v. The State and another" (2021 MLD 166), "Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others (2011 SCMR 606), "Khalid Mehmood and another v. Muhammad Kashif Rasool and others (2013 SCMR 1415), "Shoaib Mehmood Butt v. Iftikhar-ul-Haque and 3 others (1996 SCMR 1845), "Fazal Muhammad v. Ali Ahmad and 3 others (1976 SCMR 391), "Mst. Shaftqan v. Hashim and another (1972 SCMR 682) and "Hamza Ali Hamza and others v. The State (2010 SCMR 1219).
4. The learned State Counsel, assisted by the counsel for the complainant, has presented arguments against granting bail to the applicant. They have highlighted specific allegations against the applicant regarding the injuries inflicted on the complainant party. It is emphasized that the role attributed to the applicant differs from that of the co-accused, suggesting that the rule of consistency may not be applicable in, the applicant's case. Furthermore, they point out that all the Prosecution Witnesses, in their statements under Section 161 of the Criminal Procedure Code, have fully implicated the applicant in the alleged offence. The medical evidence is cited as supporting the eye-witness accounts. The alleged offence is stated to fall under the prohibitory clause of Section 497 of the Cr.P.C, indicating serious implications for bail consideration. They argue that sufficient material exists on record to establish a connection between the applicant and the alleged crime. The learned counsel contends that at the stage of considering bail, a deeper appreciation of the evidence is not permissible. Therefore, they strongly, oppose the application for bail. In summary, the State Counsel and the counsel for the complainant argue against granting bail to the applicant based on the severity of the allegations, the consistency of witness statements, and the available medical evidence supporting the prosecution's case. They assert that the circumstances warrant denial of hail pending further proceedings. Counsel for the complainant relied upon case law viz "Munir Hussain v. The State (2022 PCr.LJ Note 1110), "Waseem and 2 others v. The State" (2023 PCr.LJ Note 69), "Muhammad Jaffar v. The State and another" (2020 MLD 679), "Naseemullah v. The State and another" (2024 MLD 27), "Ghulam Fareed v. The State" (2012 YLR 2061), Masood Ahmed alias Muhammad Masood and another v.
The Stale (2006 SCMR 933), "Allah Bachayo alias Bachoo v. The State" (2013 PCr.LJ 1387), "Muhammad Nawaz v. The State and another" (2018 PCr.LJ Note 95), "Nasreen Bibi v. Farrukh Shahzad and another' (2015 SCMR 825), "Hamza Alam v. The State (2021 YLR 380), "Muhammad Suleman alias Dagai v. The State and another" (2017 PCr.LJ Note 27), photo copy of challan sheet of instant crime photo copy of FIR No. 79/ 2021, FIR NO. 09/ 2024 and FIR No. 50/ 2023 of P.S Mithi.
5.The record shows that the applicant, along with co-accused, is named in the FIR, with allegations of causing a straight hatchet blow to the head of Muhammad Saleh. However, upon examination of the injured Muhammad Saleh by the Medical Officer, the Medical Legal Certificate (MLC) opined the kind of weapon used for causing alleged injury with hard and blunt substance. The reliance in this regard was rightly placed by the counsel for the applicant on 2013 SCMR 1415 supra.
6. Admittedly, there is an old enmity between the parties, and during the incident, three individuals from the applicant side also sustained injuries which were not disclosed in the First Information Report. Cross version FIRS were registered in response to these injuries, indicating a situation where the nature of injuries is not relevant at the bail stage, especially in cases of cross-versions where there is a conflict between the Medical Officer's opinion and the FIR allegations. Given the existence of counter cases between the parties and the yet undetermined aggressor in the situation, the case falls under the ambit of section 497(2) of the Criminal Procedure Code. This is particularly pertinent when the date, place, and time of both offences are the same. The reliance placed on the case of "Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others" (2011 SCMR 606) is therefore justified. The injury attributed to the applicant was non-fatal, and the counsel for the Complainant has referenced case law (2013 PCr.LJ 1287 and 2018 PCr.LJ Note 95) relates to counter version in murder cases, wherein accused, specifically alleged to have caused firearm injuries to Prosecution Witnesses, were granted bail despite no injuries attributed to the deceased, whereas the facts and circumstances of the remaining cases law are quite distinguishable from the facts of the case in hand. Given the presence of cross-version FIRs and the submission of challans in both cases, it is incumbent upon the 'trial court to determine who was the aggressor and who was the aggressed upon, after recording evidence from the parties. This-principle was upheld by the Honourable apex court in 2020 SCMR 677.
"4. During the course of arguments, it has been noted by us and as confirmed by the learned State counsel under instructions of the police officer present with record that during the occurrence two persons from petitioner side namely Saqib and Majaz, petitioners Nos. 1 and 3 also sustained injuries but those injuries have not been disclosed in the FIR. Learned counsel appearing on behalf of State also confirms that a cross version in this regard was also recorded and Challan in both cases i.e. FIR and cross version has been submitted. In these circumstances, 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. As for now, case against the petitioners calls for further enquiry falling within the ambit of section 497(2), Code of Criminal Procedure."
7. Based on the reasons discussed above, the bail application is granted, and the applicant is allowed to be released on post-arrest bail. The conditions for bail include the applicant providing a solvent surety in the amount of Rs. 50,000 (fifty thousand and a Personal Recognizance (P.R.) Bond in the same amount to the satisfaction trial court.
8. It is important to emphasize that the observations provided above are tentative and are not intended to exert any influence on the trial court's deliberations regarding the merits of the case against the applicant. The trial court without being influenced by any observations noted above has to conduct an independent assessment of the evidence and arguments presented before it in order to arrive at a fair and just decision. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.