ORDER RAJA ABDUL AZIZ BHATTI, J.- Through this order, Cr.M. 206/C-B/94 filed by Muhammad Ghazan for cancellation of bail granted to Allah Ditta and Cr.Misc.No.701/B-94 filed by Pervaiz Akhtar to seek bail, are being disposed of.
2. The facts, in brief, are that Muhammad Ghazan lodged Rapt on 21.9.94 in PS Kallar Syedan, on the basis of which FIR No.128 dated 21.9.93 under Section 302/34 PPC was registered against Allah Ditta respondent and Pervaiz Akhtar, petitioner in Cr.M.No.701/B-94.
According to FIR, the allegations in nutshell are that Mushtaq was murdered and Allah Ditta accused/respondent received injuries In the occurrence. On the person of Mushtaq deceased and Allah Ditta accused, there are number of firearm injuries as per post-mortem report and the Medico-legal report.
3. Allah Ditta accused-respondent was allowed bail while the same was refused to Pervaiz Akhtar by the learned Addl. Sessions Judge, vide order dated 23.2.1994.
4. Learned counsel appearing for Muhammad Ghazan complainant seeks cancellation of to Allah Ditta accused/respondent on the grounds that as per version of the complainant party, Allah Ditta was armed with fire-arm weapon which he used in the incident and caused injuries to the deceased. His name finds mention in the FIR. During investigation, he was found guilty and presently specific role has been attributed to him through the complaint which has been filed against the accused in the Court of Sessions Judge, Rawalpindi. He further submits that motive is also attributed to him. Above all, learned counsel states that in this case the conduct of the investigating officers in not above board. They intentionally brought material on the record with a view to put cracks in the prosecution case. He tried to disown the contents of the supplementary statement allegedly got recorded by Muhammad Ghazan after the registration of the case. He also stated that the statement u/s 161 Cr.P.C, in the name of Mst. Nek Bakht is also fake as she did not make any such statement during investigation.
While concluding the arguments, he stated that he disowns the version brought forward by the investigating agency and insists on the version given in the private complaint filed by Muhammad Ghazan on 1.8.94.
5. On the other hand, learned counsel for the accused/respondent Allah Ditta seeks bail on the grounds that though his name is mentioned in the FIR but only his presence has been shown. He was not armed with any weapon of offence and, in fact, as per contents of the FIR he was the victim of assault which resulted in causing fire-arm injuries on his person by the deceased. He stated that the alleged occurrence took place in the courtyard of the accused party while Mushtaq deceased was the aggressor as per statement of eye-witnesses Mst. Nek Bakht and the other quoted by the prosecution. He emphatically stated that the story put forward through the private complaint by the complainant is not only an afterthought but also highly improbable. It is stated in the private complaint that Allah Ditta accused-respondent was armed with a pistol which he used while he was caught hold by Mushtaq deceased and in that course Allah Ditta caused a few injuries with the same pistol on his person and some to the deceased particularly the chest injury. This version has been taken up by the complainant party after a lapse of about one year of the occurrence.
Learned counsel contends that in such a situation no importance can be given to the version brought through the complaint. He reiterates that by now it is a case of three versions: First being given in the FIR; second brought in during investigation through the statement of Mst. Nek Bakht etc. Recorded u/s 161 Cr. J^G; and the third as stated in the private complaint. All the three versions are irreconcilable. If one version is accepted then Allah Ditta is entitled to the concession of bail and if the second version is accepted then in the case, there is no material against Mushtaq accused. In such a situation, it is in the interest of justice that benefit of these conflicting stories be extended in favour of the accused for the purpose of bail.
6. I have the arguments of the learned counsel for the parties and perused the record particularly the statement recorded u/s 161 Cr.P.C, of the prosecution witness ana the contents of the private complaint.
As far as the bail cancellation matter is concerned, a discretion has been exercised by the trial court which cannot be upset unless the order is highly improper and capricious. As stated above by the learned counsel for the accused^ respondents, there is sufficient material leading to create doubt in favour of the accused Allah Ditta. He was not armed with any weapon of offence as per contents of the FIR. At some stage, it stands admitted by the prosecution that Mushtaq deceased was armed with a pistol with which he fired 3/4 times hitting Allah Ditta as well. This given the clue of creating self defence plea having vital importance in the matter. Considering all the aspects seriously, it can safely be said that either because of improper investigation or for some reasons best known to the complainant and his witnesses, the case has become of conflicting stories and the benefit thereof if goes to anyone that is the accused party. I, therefore, reject the petition for cancellation of bail (Cr.M.206/CB-94) filed by Muhammad Gahazan complainant and accept the bail application (Cr.M.701/B-94) filed by Pervaiz Akhtar, who is granted bail in the sum of Rs.50,000/- with two sureties, each in the like amount, to the satisfaction of the trial Court.