Through this single judgment I propose to dispose of the instant bail application (Cr. M. No, 3/2003) as well as the connected bail cancellation application (Cr. M. No, 201/2003) as both have arisen out of one and the same F.I.R.
2. Haroon Ali Shah complainant made a report to the police to the effect that on 8.8.2002 at 21.20 hrs he alongwith his brother Zubair Ali Shah and Niaz Ali Shah son of Syed Farman Ali Shah was going to his duty and when reached neer Tor Hotel, Muhammad Ishaq, Nisar Khan, Mohibullah and Mehraj Ali Shah duly armed with .30 bore pistol appeared and started firing at them. Niaz Ali Shah was hit with the fireshot of accused Nisar Khan while the complainant was hit with the fire-shot of accused Mohibullah whereas Zubair Ali Shah escaped unhurt.. Subsequently Niaz Ali Shah succumbed to his injuries. On the report of the complainant a case has been registered vide F.I.R.
No, 505 dated 8.8.2002. It is pertinent to mentioned here that the accused-petitioner Muhammad Nisar Khan has also lodged an F.I.R. No, 506 dated 8.8.2002 against the complainant party of case F.I.R. No, 505 in which the complainant of FIR No, 505 alongwith the deceased and others have been charged.
3. Learned counsel for the accused-petitioner submitted that it is a cross case and it is yet to be seen that who is aggressor and who has been aggressed upon; that the complainant stated in the F.I.R. that the accused have fired with .30 bore pistols while six empties were recovered from the spot, four of .30 bore and two of 32 bore whereas the F.S.L. report shows that three type of weapons have been used while the complainant alleged that four persons have fired at them. Further submitted that the co-accused Mohibullah, Ghulam Ishaq & Miraj Ali Shah have been released on bail, as such the petitioner is also entitled to bail besides the facts that the accused party charged in case F.I.R. No, 506 have also been released on bail.
4. Learned counsel for the complainant argued that the accused-petitioner in the instant bail application and accused-respondent Mohibullah in the connected bail cancellation application are directly charged in the promptly lodged F.I.R. and mere registration of cross F.I.R. does not entitled them for concession of bail there is no scope of further inquiry and it will be seen at the time of trial that which version is correct. Act present the accused-petitioner is not entitled to the concession of bail and the bail granted to accused Mohibullah may be recalled.
5. I have heard the learned counsel for the parties and have perused the record of both the cases.
6. Be that as it may, the crucial question is as to what is the scope of grant of bail on the ground of farther inquiry 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 inquiry into the guilt of the accused and pending such inquiry he can be released on bail. In case of counter versions arising from the same incident, one given by the complainant in F.I.R. and 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 inquiry. In such cases normally, bail is granted on the ground of further inquiry 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 final conclusion in this regard.
7. In this case contentions are raised on behalf of both the parties to the effect that 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. In the instant case out of four accused, three have been released on bail by the trial Court. The accused-petitioner is behind the bar for the last about 8/9 months. The investigation is complete and he is no more required for further investigation besides the fact that the accused party of the cross case is already on bail. The fact remains that it is alleged in the FIR that the complainant alongwith others were proceeding towards police lines, Bannu for duty and when reached near Tor hotel, unfortunate incident took place. It is nowhere clear from the FIR as well as from the police record that who was the employee of the police, whether all or anyone of them. It is also not mentioned in the record that infact it was duty hour or otherwise. The prosecution has not yet confirmed from the concerned quarter the above fact. All this would make the case of the petitioner to that of further inquiry.
8. So far as the bail granted to accused-respondent Mohibullah in the connected bail cancellation application is concerned, it is on record that he was granted bail on the ground of minority.
According to his school leaving certificate he was under sixteen on the day of occurrence. There are also no allegations of mis-use of the said concession or temper with the evidence or absconsion.
9. For what has been stated above, this bail application is accepted and the accused-petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs, Three lacs with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate. The connected bail cancellation application (Cr.M.B.C. No, 210/2003) is dismissed.