' SAJJAD ALI SHAH, C.J.---Petitioner Shoaib Mehmood Butt is complainant in the case and brother of deceased Arif Butt. He has filed two petitions mentioned above seeking leave to appeal against grant of bail by a learned Single Judge of the Lahore High Court at Rawalpindi Bench to the accused persons. The private respondents in both these petitions are facing trial for offences under sections 302, 148 and 149, P.P.C. In the double murder case in which two persons, namely, Arif Butt and Saeedul Hassan died as a result of fire-arm injuries and others were injured. In Criminal Petition No,183/95 filed in this Court the learned Single Judge of the High Court has granted bail vide order dated 13-11-1995 to each of the three respondents, namely, Iftikhar-ulHaq, Anwar-ul-Haq and Qazi Muhammad Ijaz in the sum of Rs,100,000 with one surety in the like amount. In Criminal Petition No,59/96 filed before us, the learned Single Judge of the High Court has granted bail to each of the two respondents, namely, Ikram-ul-Haq and Gulfraz Abbasi vide order dated 21-4-1996 in the sum of Rs,500,000 with one surety in the like amount to the satisfaction of the trial Court.
2. The incident took place on 30-5-1995 in Khurshid Palace near Kashmir Road, which is at the distance of one kilometre from Police Station Cantt., Rawalpindi. According to complainant Shoaib Mehmood Butt, he is running business as "Butt Electronics" in two shops in Khurshid Palace within the Cantonment area. The tenancy of the disputed shops is in the name of Dilawar Mehmood Khan alias Dara. The respondents named above along with 25/30 persons came to the shops, informed the complainant that they had obtained a decree of possession from the Civil Court and wanted to take possession of the shops. They started taking out items from the stock and putting them outside. There was exchange of harsh words between the parties as the complainant claimed to have no knowledge of the proceedings. Meantime, Nasir Butt, brother of complainant, brought a stay order from the Civil Court which was announced loudly by Muhammad Arif Butt saying that dispossession would not take place. Butt respondents Iftikhar-ul-Haq and Ikram-ul-Haq, who were armed with rifles, and Anwar-ul-Haq, who was armed with a pistol, fired shots as a result whereof Arif Butt and one passerby got wounded and died and two other persons' became injured, and complainant while running was also hit by something and became injured. According to complainant, he took his injured brother Arif Butt to the hospital who died on the way. While coming to the police station he was delayed by heavy traffic and reached the police station at 6-00 p.m.
And filed F.I.R. No, 156/95 in which time of the incident is given as 3-30 p.m. And time of the report is given as 6-05 p.m. The version of the incident is same as narrated above.
3. Another version of the same incident is contained in F.I.R. No, 155/95 thjt. Was filed at the same police station at 5-15 p.m. On the same day by 'Xaramat Hussain Bailiff in which the incident is shown to have taken place on the same day at the same place at 3-30 p.m. In this F.I.R. No,155/95, the version of the incident is that landlord Anwar-ul-Haq had obtained order of eviction in respect of Shops Nos.8 and 9 situate in Khurshid Palace, Kashmir Road, Rawalpindi, against Dilawar Khan alias Dara and he came to the spot for execution of that eviction order alongwith police party, Anwar-ul-Haq and Ikram-ul-Haq. He reached the shops at 2-45 p.m. And found Shoaib Mehmood Butt there. He started execution of the eviction order and got removed items of stock from the shops and placed them outside. At 3-30 p.m. Muhammad Arif came inside the shops and protested on which he was shown the writ of eviction. There was exchange of harsh words between Muhammad Arif and Anwar-ulHaq who grappled with each other. The A.S.-I. Of the police party separated them. Meanwhile Shoaib Mehmood Butt went out of the shops and after sometime came back and by that time all the goods in the shops had been removed and placed outside and eviction was complete. At about 4-00 p.m. Nasir came in the shop in a state of temper and asked Muhammad Arif to bring pistol from his car and fire at the persons who had come to dispossess them.
4. Meanwhile, firing started outside the shops and bailiff Karamat Hussain and Anwar-ul-Haq hid themselves in a small room. After the firing was over, both of them came out and were informed by the Sub-Inspector that Muhammad Arif, on the instigation of his brother Nasir, fired from his thirty- bore pistol at persons standing near Javad Motors which is the shop of Anwar-ul-Haq. Two other persons joined Muhammad Arif and assisted him in the act of firing. In reply Abdul Hameed son of Bagh Ali and other two persons also fired from Jawad Motors as a result whereof Muhammad Arif, Saeedul Hassan and Gulfraz Abbasi became injured and were taken to the hospital,. It is stated in F.I.R. No, 155/95 that this incident as such took place on account of resistance of Muhammad Arif and Nasir Mehmood to the execution of the writ of eviction and the said incident was seen by Karamat Hussain, Anwar-ul-Haq, and the Sub-Inspector of the police and other persons. A case was registered against Muhammad Arif, Nasir Mehmood and others.
5. Respondents/accused persons applied for bail before arrest which was declined. Thereafter, they applied for bail after arrest. Not succeeding in getting relief from the lower Courts, they approached the High Court. In the first instance, Criminal Miscellaneous No,747-B/95 was filed by Ifitikhar-ul-Haq, Anwar-ul-Haq and Qazi Muhammad Ijaz. The bail application was vehemently opposed by the counsel of the complainant in the High Court. The learned Judge in the High Court noted the contentions in detail raised by both the parties in favour of and against grant of bail. The High Court has granted bail vide impugned order dated 13-11-1995 on the grounds mentioned therein preferring the version contained in the first F.I.R. No,155/95 registered by Karamat Hussain Bailiff. This order is challenged in Criminal Petition No,183/95. The High Court has granted bail vide order dated 21-4-1996 to two respondents before us, namely, Ikram-ul-Haq and Gulfraz Abbasi on the grounds, inter alia, that it is a case of two versions contained in the two F.I.Rs, and that it is for the trial Court to determine as to which version is true. In this order as well High Court has preferred the version contained in F.I.R. No,155/95 registered by Karamat Hussain, bailiff. This order of grant of bail has been challenged in Criminal Petition No,59/96.
6. We have heard at length Raja Muhammad Anwar, Sr. A.S.C. For the petitioner, in favors of cancellation of bail and Mr. S.M. Zafar, Sr. A.S.C. For respondents Nos.1, 2 and 3 fir Criminal Petition No,183/95 and Sardar Muhammad Ishaq, A.S.C. For respondents Nos.1 and 2 in Criminal Petition No,59/96, who were present in the Court on caveat. Mr. Muhammad Aslam, A.S.C., was present on behalf of the Advocate-General, Punjab to whom notice had already been issued by this Court.
'Against grant of bail, Raja Muhammad Anwar vociferously argued that the High Court has overstepped its jurisdiction and authority by making deep analysis which amounts to appraisement of evidence which is yet,- to be recorded and also is the exclusive function of the trial Court. Hence /the case of the complainant has seriously been prejudiced because of the finding in the orders of the High Court that the version contained in F.I.R. No, 155195 is true. On the other hand, Mr. S.M. Zafar and Sardar M. Ishaque for the respondents have elaborately defended the orders passed by the High Court granting bail and averred stoutly that in doing so the High Court has not exceeded its jurisdiction but has acted within the four corners of the guidelines laid down in the case-law on the subject defining scope of making tentative assessment of evidence and material available at the time of hearing of bail applications.
7. Before we go into the legal angles, as advocated by the learned counsel for the parties, it would be pertinent to see and take into consideration the evidence and material available on the record.
The incident took place on 30-5-1995 in respect of which two F.I.Rs, have been registered. The first F.I.R. No,155/95 has been lodged by Karamat Hussain, Bailiff, at 5-15 p.m. And the second F.I.R.
No,156/95 has been lodged by complainant Shoaib Mehmood Butt at 6-05 p.m. At the same police station. The versions contained in both the F.I.Rs, have already been mentioned above in the preceding paragraphs and need not be repeated. It wo:Ild be suffice to say that in the first F.I.R.
No,155/95 the incident has been divided into two parts. In the first part the order of eviction passed by the Court was executed in the shops and the items of merchandise were removed during which Nasir, brother of the complainant, came and instigated his other brother, Muhammad Arif Butt. In the second part, Muhammad Arif Butt brought out pistol from the car and fired at the persons standing near Jawad Motors (shop of Anwar-ul-Haq). Firing was returned from Jawad Motors by Abdul Hameed son of Bagh Ali and in the result Muhammad Arif Butt, Saeed-ul-Hassan and Gulfraz Abbasi were injured and taken to the hospital, Caramel Hussain, Bailiff, who is complainant in this F.I.R., has admitted that at the time of firing he and Anwar-ul-Haq while being present in the shops, hid themselves in a small room due to fear, hence he was not an eyewitness to the actual firing and could not say who hit whom. He learnt about the details of the firing from Sub-Inspector Ali Asghar who has been cited as eyewitness. Presence of both these witnesses at the spot is supported by the fact that they had come to execute the writ of possession issued by the Court in respect of the shops in dispute.
8. The second F.I.R. No, 156/95 has been lodged by complainant Shoaib Mehmood Butt, brother of deceased Muhammad Arif Butt. It was registered later in point of time than F.I.R. No, 155/95. The version contained in this F.I.R. Is that the respondents before us and 25/30 other persons came to the shops to take possession under the order of eviction passed by the Civil Court. Before vacation was complete, Nasir, brother of the complainant, brought stay order from the Civil Court and Muhammad Arif Butt announced loudly in the , passage that dispossession would not take place.
Three persons, narnel, Ikram-ul-Haq, Iftikhar-ul-Haq and Anwar-ul-Haq, who were all armed fired and in the result Muhammad Arif Butt and one passerby became injured and died. The stay order as such has not been produced and is not available in the record. However, the report of Sh.
Muhammad Khalil, Advocate, who was appointed as Local Commissioner by the Civil Court, is available in the record. Seemingly, he arrived at the spot after the incident was over and in his report he has mentioned so of the fact that possession of the shops in dispute had already been taken over from the tenant and the shops were locked and the goods were lying out.
9. After consideration of both the F.I.Rs, and the material available on the record, the High Court has granted bail vide order dated 13-11-1995 on the grounds that Dilawar Khan was the tenant of the shops and even if the complainant was running business jointly with Dilawar Khan, the complainant had no business to resist execution of the writ of possession. F.I.R. No, 155/95 was registered prior in point of time and presence of the Bailiff has been supported by the Sub- Inspector and other members of the police party. Complainant Shoaib Mehmood Butt has suppressed the presence of the Bailiff and the police party at the spot. Qazi Muhammad Ijaz has not been assigned any specific role in the F.I.R. Though it has been alleged that Anwar-ul-Haq fired from pistol, but no crime empty of pistol was recovered from the ' Wardat'.
10. The High Court passed another order on 21-4-1996 and granted bail to Ikram-ul-Haq and Gulfraz Abbasi, who are respondents before us in Criminal Petition No,59/96, on the grounds that it was a case of two versions. Muhammad Arif was trouble-maker as he fired at the persons near Jawad Motors and firing was returned by Abdul Hameed in the result whereof Muhammad Arif and other became injured including Gulfraz Abbasi. Complainant Shoaib Mehmood Butt in the second F.I.R. Did not mention the roles played by Ikram-ul-Haq and Gulfraz Abbasi. No explanation was furnished as to how Gulfraz Abbasi was injured. Covering the same incident two F.I.Rs have been Ackf filed and it was for the trial Court to say which F.I.Rs, was true. The accused persons had taken the plea of private defense.
11. Before us Raja Muhammad Anwar for the petitioner contended that the High Court had erred in making deep analysis of the material brought on the record and should not have given finding that F.I.R. No, 155/95 was correct. Bail should not have been granted at the stage of investigation. Two Investigating Officers had shown complainant party as aggressor but the final report supported by the D.S.P., the S.P. And the D.I.-G. Showed that the seven accused were culprits as indicated in F.I.R.
No, 156/95. The learned counsel further argued that complainant Shoaib Mehmood Butt had made investment in the purchase of merchandise which was being sold in the shops of Dilawar Khan and the latter was mixed up with the landlords and obliged them in the eviction proceedings in the trial Court.
12. As against that Mr. S.M. Zafar for the respondents in Criminal Petition No,183/95 contended before us that Anwar-ul-Haq was arrested on 3-6-1995 and no pistol was recovered from him, nor any crime empties of pistol were recovered from the 'Wardat' Qazi Muhammad Ijaz was arrested on 3-6-1995 but his name was not mentioned in the F.I.R. Iftikhar-ul-Haq was arrested on 12-6-1995 and, according to the F.I.R., he was armed with a rifle, but no recovery was made from him and no specific part was assigned to him. The learned counsel further stated in his summing up that his clients after remaining in jail from June, 1995 to November, 1995 were released on bail but no allegation has been made that the facility of bail has been misused. It is the case of two versions and plea of private defence is also taken. He further stated that Anwar-ul-Haq is a law graduate and was educated in America.
13. Sardar M. Ishaq for the respondents in Criminal Petition No,59/96 contended before us that the complainant party had, nothing to do with the shops in dispute in which Dilawar Khan was tenant.
They had no business to interfere with the execution proceedings against Dilawar Khan who had signed in acknowledgement of possession of the said shops having been handed over to the landlords. Gulfraz Abbasi was wounded in the chest and was hopsitalised and he was abducted by the complainant party. The police did not register F.I.R., hence direct complaint was filed. The learned counsel further argued that the complainant party was aggressor and the accused party fired in private defence. It is the case of the prosecution that eight empties matched with the rifle of Ikram-ul-Haq, which is proof of firing but not of murder. Gulfraz Abbasi is not named as accused in F.I.R. No,156/95. It is for the trial Court to decide which party is aggressor. Mr. Muhammad Aslam for the Advocate-General, Punjab supported grant of bail by the High Court by the impugned orders.
14. We have reproduced above the contentions raised by the learned counsel appearing for the parties before us in order to determine the very crucial point involved in the disposal of these two bail applications for cancellation of bail. ' The crucial question is as to what is the scope of grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. Which enables the Court to grant bail if it appears to such Court that there are sufficient grounds for further enquiry into the guilt of accused and pending such enquiry he can be released on bail. Previously, bail used to be refused if plea raised turned on appreciation of evidence. However, departure was made in the case of Khalid Javed Gillan v. State (PLD 1978 SC 256) in which for murder two accused were named in the F.I.R. And there were two eye-witnesses. Petitioner Khalid Javed Gillan applied for bail on the ground of plea of alibi that on the day of the incident, which took place in Khanpur, at the relevant time he was in Lahore as he had appointment with a doctor in the Mental Hospital.
He also produced a certificate of the doctor in respect of his plea. The distance between Lahore and Khanpur is about 350 miles. Bail plea was refused by the trial Court on the ground that it was specifically mentioned in the F.I.R. That the petitioner had caused two dagger blows to the deceased, hence plea of alibi was not entitled to any credit. The High Court dismissed bail plea of the petitioner. This Court after survey of the case-law on the subject came to the conclusion that while deciding bail application, Court could resort to tentative sifting of evidence as distinguished from elaborate sifting of evidence and the contention that bail could not be granted if plea pressed turned on appreciation of evidence was not correct. It was further held that to determine the question whether bail was to be granted or not, the Court was bound to make tentative assessm ent of the material placed before it. The Court, however, had to refrain, directly or indirectly, from giving any conclusive finding on the question of guilt or innocence of accused. In the case of Sarwar Sultan v. State (PLD 1994 SC 133) this Court has held that trial Court has to analyses the legal worth of material to be produced by the parties including affidavits and during hearing of bail application, the Court can make tentative assessment of material which is different from and not at equal footing with appraisement of evidence, which is within the ambit of jurisdiction of the trial Court.
15. In the case of Shahzaman v. State (PLD 1994 SC 65), three accused persons faced trial for offences under section 302/34, P.P.C. The trial Court granted them bail on the grounds firstly that investigation was dishonest as the statement of Ashraf was not recorded who informed the complainant. Secondly, post-mortem examination did not take place and there was no medical report showing nature of injuries to confirm the allegation that injuries were caused by 'Lathis' and 'Saryas'. Thirdly, evidence did not show clearly as to who caused the fatal injury. For such reasons bail was granted under section 497(2), Cr.P.C. As the case fell within the purview of further enquiry.
The High Court cancelled that bail. The Court held that under section 497(2), Cr.P.C. Bail is to be allowed if it appears to the Court that there are sufficient grounds for further enquiry into the guilt of the accused. Now what would constitute as sufficient grounds for further enquiry would depend on the peculiar facts of each case and no hard and fast rule can be laid down for that purpose.
Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient ground for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is n& guilty of the offence with which he is charged. For example, if accused in charged for offence under section 302, P.P.C. But there are grounds for further enquiry which may show that he may not be convicted of the charge under section 302, P.P.C. But may be acquitted or convicted for a lesser offence.
16. In case of counter-versions arising from the same incident, one given by complainant in F.I.R.
And the other given by the opposite-party case-law is Almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. In such cases E normally, bail is granted on the ground of further enquiry for the reason that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a fire conclusion in this regard. In cases of counter-versions, normally, plea of private defense is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. All Ahmad (1976 SCM R 391) in cross-cases the High Court granted bail to the accused on the ground that there was probability of counter-version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted, In the same context, reference can be made to the case of Mst. Shafiqan v. Hashim Ali and others (1972 SCM R 682).
17. In this case contentions are raised on behalf of both the parties to the effect as to which version in the two F.I.Rs, is correct and which party is aggressor and which party is aggressed. Hence, the contentions relating to these questions can be gone into and decided by the trial Court after elaborate evaluation of the evidence recorded by it. We after careful consideration of the orders passed by the High Court and the contentions raised before us on behalf of both the parties, are of the view that the reasoning given by the High Court for the grant of bail is not perverse or capricious warranting interference by this Court. For this proposition reliance is placed on the cases of Ahmed v. Sheru (1979 SCM R 526) and Tariq Bashir v. State (PLD 1995 SC 34). However, we would like to point out in no uncertain terms that the observations made by the High Court in the orders granting bail and by us in this orier are confined to tentative assessment made for the purpose of disposal of bail applications and are not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the law of the time of disposal of the case which, of course it is needless to say, is the function of the trial Court.
' For aforementioned reasons, leave is refused and these petitions for cancellation of bail are hereby dismissed.
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