' MUNIR A. SHEIKH, J.---This judgment shall dispose of Criminal Petition for Leave to Appeal Nos.81-L of 1998 and 82-L of 1998 as questions of law and facts are common in both of them.
2. Leave to appeal is sought against the order dated 16-1-1998 of the Lahore High Court, Bahawalpur Bench passed in Criminal Miscellaneous Nos.980-B and 1040-B of 1997, through which the respondents have been granted bail in case F.I.R. No,38 of 1997 registered under sections 302, 324, 337 and 34, P.P.C. And case F.I.R. No,38 of 1997, registered under section 302/324/34, P.P.C., respectively.
3. F.I.R. No,38 of 1997 was lodged by Ghulam Murtaza in which he nominated Muhammad Anwar, Muhammad Arshad and Akhtar Ali, deceased as accused persons. Akhtar Ali who suffered firearm injuries died in the Hospital and before death, made a dying declaration on the basis of which investigation was held and Tariq Mehmood and Ghulam Murtaza from the complainant side were also challaned.
4. The main objection of the learned counsel for the petitioner against the impugned order was that the same has been passed merely on the reason that there was cross-version and record was not examined in order to decide as to which of the party was aggressor and suffered more in the incident.
5. No doubt, learned Judge has not discussed the merits of the case. This Court passed order for the summoning of the Investigating Officer who is present in the Court today. We have examine the record and find that Haroon D.S.P., who originally investigated the case categorically recorded an opinion that it was the petitioner's party who opened fire first at the complainant party and Ghulam Murtaza sustained injury at his abdomen. He found that Muhammad Anwar of the petitioner side sustained injury by the firearm of Tariq Mehmood.
6. Another police officer who subsequently investigated the case and gave his opinion. According to him, it was the petitioner's party who opened the fire at the complainant party and thereafter, there was an exchange of firing. According to his opinion, it could not be determined at that stage as to with whose fire Akhtar Ali died.
7. Both the parties have been sent up for trial. After considering the dying declaration from both sides and the record of investigation, we are not inclined to cancel the bail granted to the respondents though no reason other than the reasons of cross-version has been given as we find after examining the record, that on merits, it was otherwise a fit case for grant of bail. Resultantly, these petitions are dismissed and leave to appeal refused.