--Arrest of the petitioner is not necessary for the purpose of recovery --Pre-arrest bail-

 PLJ 2021 Cr.C. 952

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 337-A(i), 337-A(iii), 337-L(2), 148 & 149--Confirmation of--Cross-version case--Tentative assessment--Pre-arrest bail--Grant of--Which party was aggressor and which party was aggressed upon--both of the versions of the incident are being investigated and exist on record--In a pre-arrest bail, only tentative assessment of the evidentiary material produced before the Court can be made at this stage--There is no explanation or mention in the instant cross-version case as to in what manner and at whose hands--There is no explanation and mention in the FIR of the injuries as suffered by the complainant of the cross-version case and the injured witness of the cross-version--Both the parties have tried to suppress their roles in the occurrence and have not narrated the same with full truthfulness--It is case of brawl where both the parties injured each other--It is yet to be determined as to which party is aggressed against and which version is correct--Sending the petitioners behind the bars at this stage would serve no useful purpose--Pre-arrest bail is confirmed.

                                                     [Pp. 954 & 955] A, B, C, D, E, F & H

1996 SCMR 1845; 2016 SCMR 2048; PLJ 2018 SC 445;
PLD 2017 SC 730 ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Recovery of weapon--Arrest of the petitioner is not necessary for the purpose of recovery.   [P. 955] G

PLJ 2018 SC 445 ref.

Khawaja Qaiser Butt, Advocate with Petitioners.

Rana Muhammad Ashraf Jameel, Advocate for Complainant/Respondent No. 2.

Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.

Date of hearing: 29.03.2021.

 PLJ 2021 Cr.C. 952
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD MEHRAN and 3 others--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 1849-B of 2021, decided on 29.3.2021.

Order

Learned counsel for the petitioners, at the very outset, seeks to withdraw this petition to the extent of the Petitioner No. l namely Muhammad Mehran. This petition is dismissed as withdrawn to the extent of Petitioner No. 1 namely Muhammad Mehran and ad-interim pre-arrest bail already granted to him vide order dated 19.03.2021 is recalled.

2. Through the instant petition filed under Section 498, Cr.P.C. the petitioners, namely Hakim Ali, Muhammad Saleem and Muhammad Adnan, seek pre-arrest bail in the cross-version case lodged on the report of Mst. Shamshad Bibi, registered through Rapt No. 11, at the Police Station Tibba Sultan Pur, on 15.01.2021 in respect of offences under Sections 337-A(i), 337-A(iii), 337-L(2), 148 and 149, PPC, relating to case FIR No. 37 of 2021 dated 15.01.2021, registered at the same Police Station.

3. The allegation against the petitioners, namely Hakim Ali, Muhammad Saleem and Muhammad Adnan, culled from the evidentiary material produced before the Court, is that they along with their co-accused, attacked the complainant party and the petitioner No. 2 namely Hakim Ali, while armed with an iron rod, gave a blow of the same hitting on the left knee joint of Mst. Shamshad Bibi, the complainant of the cross-version case, the petitioner No. 3 namely Muhammad.Saleem, while armed with a sota, gave a blow of the same hitting on the chin of Mst. Shehneela Bibi, the injured witness of the cross-version case and the petitioner No. A namely Muhammad Adnan, while armed with a hatchet, gave a blow of the wrong side of hatchet hitting on the left leg of Mst. Shehneela Bibi, the injured witness of the cross-version case. It was further recorded in the Rapt No. 11, lodged on the report of Shamshad Bibi that the accused also committed theft of property of the value of Rs. 90,000/-.

4. I have heard the learned counsel for the petitioners, the learned counsel for the complainant/Respondent No. 2, the learned Deputy Prosecutor General and have gone through the record of this case with their able assistance.

5. This is a pre-arrest bail and only tentative assessment of the evidentiary material produced before the Court can be made at this stage. It is discernible from the perusal of the record that the incident which took place on 15.01.2021, was reported to the police through the instant cross-version case lodged on the report of Mst. Shamshad Bibi, registered through Rapt No. 11 and through the MR No. 37 of 201, lodged on the statement of Muhammad Saleem (the petitioner No. 3). According to the version of the incident as contained in Rapt No. 11, during the occurrence. Mst. Shamshad Bibi and Mst. Shehneela Bibi were injured, whereas according to the version of the incident as narrated in the FIR, Muhammad Saleem (the petitioner No. 3), Muhammad Adnan (the petitioner No. 4), Haider Ali, Muhammad Majid and Mehran Saleem were injured. All the above mentioned injured persons were medically examined and the Medico Legal Examination Certificates were issued with regard to the injuries observed on their persons. Obviously, there is no explanation or mention in the instant cross-version case as to in what manner and at whose hands the persons namely Muhammad Salecm (the petitioner No. 3), Muhammad Adnan (the petitioner No. 4), Haider Ali. Muhammad Majid and Mehran Saleem were injured during the occurrence. Similarly, there is no explanation and mention in the FIR of the injuries as suffered by Mst. Shamshad Bibi, the complainant of the cross-version case and Mst. Shehneela Bibi, the injured witness of the cross-version case. In this manner, it can be safely concluded that both the parties have tried to suppress their roles in the occurrence and have not narrated the same with full truthfulness. With regard to the allegation against the petitioners that they had committed theft of the property of Rs. 90,000/-, suffice is to observe that the said allegation is couched in generalized and collective terms without there being any specific role attributed to any one of the petitioners or their co-accused and it had not been mentioned in the FIR that out of the accused which accused was the one who went away from the place of occurrence carrying the stolen property. It would be the learned trial Court which would be in a better position to determine these aspects of the case and the fact that which party was aggressor and which party was aggressed upon. At this stage no such opinion is being expressed lest it prejudices the case of either party. The Investigating Officer, present before the Court, submits that both the versions of the incident are being investigated by him and exist on record. The investigating officer of the case submits that he, till date has not reached at the conclusion that as to which of the version of the incident is correct. It has been observed that it is a case of brawl where both the parties injured each other. It is a settled principle of law that in the cases of counter versions, arising from the same incident., one given by the complainant in the shape of FIR and the other given by the opposite party in shape of Rapt, such cases call for further inquiry and probe as contemplated under Section 497(2), Cr.P.C. It is yet to be determined as to which party is aggressor and which party is aggressed against and which version is correct is to be decided by the learned trial Court which is supposed to record evidence and also appraise the evidence in order to come to a final conclusion in this regard. Reliance in this regard can be placed to the case of “Shoaib Mehmood Butt vs. Iftikhar-ul-Haq and 3 others” (1996 SCMR 1845) and also upon the case of “Ghulam Abbas vs The State and others” (2016 SCMR 2048) wherein the august Supreme Court of Pakistan has held as under:

“Admittedly, it is a case of two versions and possibility of false implication of the petitioner cannot be ruled out. It is to be determined by the learned trial Court after elaborate evaluation of the evidence to be recorded by it as to which party was the aggressor and which party was aggressed upon.

Learned Deputy Prosecutor General has vehemently argued that recoveries of weapons are yet to be affected from the petitioners, hence, they do not deserve for the extra ordinary relief-of pre-arrest bail. Suffice is to observe that the arrest of the petitioners is not necessary for the purpose of recovery and the said purpose can be achieved by procuring the search warrants by the Investigating Officer. Reliance is placed on the case reported as “Aamir Bashir and another v. State and another” (PLJ 2018 SC 445), wherein it is held as under:

“The plea of the Advocate General that the investigating agency has been deprived to interrogate both the petitioners for the recovery of the crime pistol and to colleect further evidence after getting their custody, is not acceptable in the circumstances of the case. Moreover, this Court time and again has held that this could not be a ground for refusal of pre-arrest bail because the police has to use proper skills of investigation while interrogating the accused person, staying on pre-arrest bail. The interrogation inside the lockup of the police station or inside the police station would make a very little difference.”

The versions of the petitioners as well as complainants of both the versions have been verified by Investigating Officer. The assertion that the involvement of the petitioners in the case is based on mala fide and malicious intent is an assertion which cannot be said to be without substance or foundation at this stage. Sending the petitioners behind the bars at this stage would serve no useful purpose. Reliance is placed on the case of “Khalil Ahmad Soomro and others v. The State” (PLD 2017 SC 730) wherein the following principle has been enuneiated:-

“Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide.”

6. In view of the above discussion, this petition to the extent of the petitioners No. 2 to 4, namely Hakim Ali, Muhammad Saleem and Muhammad Adnan is allowed and ad-interim pre-arrest bail already granted to them, by this Court vide order dated 19.03.2021, is confirmed subject to their furnishing of fresh bail bonds in the sum of Rs. 200,000/- (Rupees two hundred thousand only) each with two sureties each, each in the like amount each, to the satisfaction of learned trial Court.

7. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court in any manner.

(M.A.B.)         Bail confined