The petitioner seeks bail in a case registered against him and others vide F.I.R. No, 373 dated 3-9- 2001 for offences under sections 324/337-F(ii)) and (iii)(v)/109/148/ 149 of the P.P.C., Police Station Chuchak District Okara.
2. At the time of occurrence, the petitioner was armed with a 7-MM rifle and had tired at Shahid Jqbal complainant causing injuries on the wrist of his arm. Tariq Mahmood co-accused was armed with a .12 bore gun and fired at the complainant causing injuries on the palm of his left hand. The third shot was fired by Masaib Khan with his 222 rifle causing injuries to Ghulam Murtaza, uncle of the complainant on the ankle of his left leg. As a result of this injury his legal got fractured.
Riaz Ahmed was armed with 8-MM rifle and fired a shot causing injuries on the fingers of the complainant's left hand. Zohray Khan and Mubashir, Khan also fired with their guns and caused injuries to Zahid Iqbal and Riaz Hussain, P.Ws.
3. The petitioner's learned counsel contends that there is a delay of about 28 hours in lodging the F.I.R., that as may as 11 persons belonging to the same family, have been falsely roped in the case, that out of 11 accused, 5 accused were declared to be innocent; that there is a background of enmity between the parties due to which almost all the male members of the family have been implicated in the case; that all the P.Ws. are closely related to the complainant; that Abdul Majeed/co-accused has filed a private complaint, which contains the counter-version on behalf of the accused party and the trial Court has recorded the complainant's statement as well as that of another witness and the complaint is pending before the trial Court; that there are two versions of the occurrence and the petitioner deserves bail as held in the case of Amir v. State (PLD 1972 SC 277), Amir v. State (1973 PCr.LJ 205), Shadi Khan v. State (2002 PCr.LJ 147) and Shoaib Mahmood Butt v. Iftikharul Haq (1996 SCM R 1845) that Tariq Mahmood/coaccused has already been allowed bail by this Court vide order dated 21-2-2002 passed in Criminal Miscellaneous No, 802-B of 2002.
4. On the other hand, the learned counsel for the State and the complainant oppose bail on the ground that mere presence of a counter-version does not make a case one of further inquiry, that the cross-version raised on behalf of the accused persons was found to be false after thorough investigation by the police; that while dealing with the bail petition of Tariq Mahmood/co-accused, this Court had given weight to the fact that the cross-version was found to be false; that only Tariq Mahmood/co-accused had one injury on his head caused with a blunt weapon; that so far as Masaib Khan is concerned, he went of his medical examination but disappeared before he was examined; that the petitioner had taken active part in the occurrence and caused injuries to Shahid Iqbal, P.W.; that in the circumstances of the case, he is vicariously liable for the act of his co- accused as well; that no deeper appreciation of evidence can be made at this stage and that although the petitioner is being tried by the Magistrate, yet if he finds that sentence exceeding 7 years is called for, he can send the case to the Sessions Court.
5. The facts bore out from the F.I.R. show that all the accused persons had formed an unlawful assembly and were hiding near the Dhari of Abdul Hameed. When. the complainant party was passed from near the said Dhari, all the accused jointly emerged and launched an attack on them.
As narrated above, Ahmed Nawaz/petitioner, Tariq Mahmood, Masaib Khan, Riaz Ahmad, Zohray Khan and Mubashir had effectively fired at tie complainant-party and caused injuries to 4 persons (Shahid Iqbal complainant, Ghulam Murtaza, Zahid Iqbal and Riaz Hussain). Therefore, prima facie, they appear to be vicariously liable for committing offence under section 324 of the P.P.C., which falls within the prohibitory clause of section 497 of the Cr.P.C. There is weight in the argument raised by the complainant's learned counsel that mere presence of a counter-version, per se, is not sufficient to make a case one of further inquiry. #TS## In the case of Nasir Muhammad Wassan and another v. The State (1992 SCM R 501) (referred to by the complainants learned counsel), the Hon'ble Supreme Court of Pakistan was pleased to hold' that merely because there were cross- F.I.Rs,, or cross-cases got registered by the parties against each other, it could not be a ground for grant of bail in the circumstances of the case similar view was expressed in the case of Muhammad Usman and others v. State (1975 SCM R 391) There is no hard and fast rule that in each case in which there are counter-versions/cases, bail must be granted on the ground of further inquiry without regard to the peculiar facts and circumstances of the case. For purposes of bail in such-like cases, there must be clear facts before the Court for forming a view that probably the complainant party had committed aggression or suppressed material facts, which could bring the case of an accused person within the ambit of anyone or more of the exceptions enumerated under section 97 or 100 of the P.P.C. If such facts are not available and otherwise the counter- version/case appears to be unreasonably delayed or improbable or it does not fit in the physical circumstances of the case, then it may not be accepted for allowing bail to an accused. However, at bail stage, a counter-version need not be proved beyond a reasonable doubt. In the present case, Tariq Mahmood/co-accused was shown to have received an incised wound 2.5 c.m. x 0.4 c.m. muscles deep, as per the medico-legal report dated 6-9-2001. (In his arguments, the petitioner's learned counsel had referred to it as a blunt weapon injury). In the private complaint, it was alleged that Shahid Iqbal (complainant) armed with a rifle, Zahid Iqbal with .30 bore pistol, Amir Ali, Murtaza and Riaz with rifles and Irshad Hussain and Mumtaz armed with .12 bore guns, had fired at the accused persons but it is strange that no one had received any fire-arm injury. So far as Masaib Khan son of Abdul Wahab. the injured person on the side of accused persons is concerned, he could not be medically examined as he had disappeared from the hospital. The presence of the solitary injury on the head of Tariq Mahmood is not sufficient to hold that in fact the complainant party had launched an attack on the accused persons in the manner alleged in the private complaint so as to make the prosecution case doubtful of one of further inquiry to justify grant of bail to the petitioner.
6. The judgments cited the petitioner learned counsel proceed on their on distinguishable facts are of no help in the present case for recording a finding that the case is one of further inquiry. In the case of Amir, the eye-witnesses had stated before the Committing Magistrate that the accused fired his gun after the deceased had ,fired at accused's companion. This admission created a ground for raising the plea of self-defence. The accused was directed by the Supreme Court to renew his application before the learned Single Judge and High Court was advised to consider whole case for purposes of law on the available date. Thereafter, the case came up before the High Court and it was decided afresh and bail was allowed to Amir accused. It was observed in the order that while considering whether the case fell within the prohibition contained in subsection (1) of section 497 of the Cr.P.C., the Court is not supposed to keep in view only the maximum sentence provided under the law and that if' the prosecution case taken to its extreme would not entail the maximum punishment, the case would go out of the prohibition. With due deference, I may observe that ordinarily at bail stage, it is extremely difficult to visualise as to whether an accused would deserve maximum penalty provided under the law or not. The question of punishment can be suitably decided by the trial Court after recording evidence. At the bail stage, when the entire material is not before the Court, the Court would be merely travelling in the realm of imagination for recording a finding whether maximum sentence would be called for or not. Such exercise will open the door for arbitrariness and personal whims. The statutory requirement at bail stage is to see the accusation made against the accused and whether the material on the record disclosed reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. Once such reasonable grounds are made out, then it is enough to refuse bail on the ground that the offence falls within the prohibitory clause of section 497 of the Cr.P.C. without undertaking the exercise whether on the facts and in the circumstances of the case, an accused would deserve maximum punishment. This is essentially the function of the trial Court, which should not be pre-empted by the other Courts at the bail stage. In the case of Shadi Khan, the same view was reiterated that while-considering an application for bail, the Courts are not supposed to keep in view the maximum sentence provided in the law. The case of Shoaib Mahmood Butt pertains to cancellation of bail granted by the Lahore High Court. In this case, one F.I.R. (No,156 of 9195) was registered on the report of the complainant and another F.I.R. (No,155 of 1995) by the Court Bailiff. Obviously, there were two versions of the occurrence and among other facts this was treated as a ground for allowing bail to the accused persons.
7. Tariq Mahmood/co-accused was granted bail by this Court as during the course of investigation, it was found that he was empty-handed and not armed with a .12 bore gun. This factual position was even admitted by the complainant and for that reason he was allowed bail by this Court. The five co-accused, who were found to be innocent during the investigation, were merel: alleged to have taken part in the conspiracy to attack the complainant party. The evidence of the alleged conspiracy was not satisfactory whereupon a finding of innocence was recorded in their favour.
However, the petitioner had actively taken part in the occurrence and caused injuries. He does not deserve concession of bail. Therefore, his bail petition is dismissed. 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.