PLJ 2022 Cr.C. 744
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 337-A(v), 337-F(v), 337-L(2) & 34--Pre-arrest bail, grant of--Further inquiry--Allegation of--Attacked on complainant party with wooden stick--Held: It is a settled principle of law that in cases of counter-versions, arising from same incident, one given by complainant in shape of FIR and other given by opposite party in shape of Rapt or a report, 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 trial Court which is supposed to record evidence and also appraise evidence in order to come to a final conclusion in this regard--The Investigating Officer of case submits that nothing is to be recovered from possession of petitioner as according to his investigation, petitioner was not armed at time of occurrence--The versions of petitioner as well as complainants of both versions of incident have been verified by Investigating Officer--The assertion that involvement of petitioner in 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 petitioner behind bars at this stage would serve no useful purpose and would cause irreparable loss to his reputation--Bail allowed. [P. 747] A & B
PLD 2017 SC 730, 1996 SCMR 1845 and 2016 SCMR 2048.
Mr. Muhammad Atif Saleem Qureshi, Advocate with Petitioner.
Mr. Javed Iqbal Bhaaya, Assistant District Public Prosecutor for State.
Mr. Adnan Arshad Jatoi, Advocate for Complainant/ Respondent No. 2.
Date of hearing: 4.5.2021.
PLJ 2022 Cr.C. 744
[Lahore High Court, Bahawalpur Bench]
MUHAMMAD SHARIF--Petitioner
versus
STATE and others--Respondents
Crl. Misc. No. 1302-B of 2021, decided on 4.5.2021.
Order
Through this petition filed under Section 498, Cr.P.C. the petitioner namely Muhammad Sharif seeks pre-arrest bail in the cross-version case, lodged on the application of Rab Nawaz and registered through Case Diary No. 04, dated 10.02.2021, in respect of offences under Sections 337-A(v), 337-F(v), 337-L(2) and 34, PPC, relating to case FIR No. 62 of 2021; dated 06.02.2021, registered at the Police Station City Khanpur, District Rahim Yar Khan.
2. The allegation against the petitioner namely Muhammad Sharif, culled from the evidentiary material produced before the Court, is that he, along with his co-accused, attacked the complainant party and the petitioner, while armed with a wooden stick, gave a blow of the same, hitting on the head of Rab Nawaz, the complainant of the cross-version case.
3. I have heard the learned counsel for the petitioner, the learned counsel appearing on behalf of the complainant/Respondent No. 2, the learned Assistant District Public Prosecutor and perused the record with their able assistance.
4. This is a pre-arrest bail and only tentative assessment of the evidentiary material produced before the Court can be made at this stage. The allegation against the petitioner is that he, while armed with a wooden stick, gave a blow of the same, hitting on the head of Rab Nawaz, the complainant of the cross-version case. The Investigating Officer of the case, present before the Court, submits that he has concluded the, investigation of the case and has received evidence to the fact that the petitioner namely Muhammad Sharif had not given any blow on the head of Rab Nawaz as was suggested by Rab Nawaz in his written application, upon which the instant cross-version case was registered through Case Diary No. 4, dated 10.02.2021 and the said conclusion of the Investigating Officer has been incorporated in Case Diary No. 19, dated 04.04.2021. The said conclusion of the Investigating Officer has not been challenged by the complainant before any forum. In view of the conclusion arrived at by the Investigating Officer of the case, a possibility does exist that the petitioner has been involved in the case due to mala fide and malicious intent of the complainant of the cross-version case. Furthermore, the petitioner himself is the complainant of the FIR No. 62 of 2021, dated 06.02.2021, registered at the Police Station City Khanpur, District Rahim Yar Khan relating to the same occurrence and according to the FIR, the petitioner himself was injured during the occurrence. The petitioner was examined by the Medical Officer and a Medico Legal Examination Certificate was issued with regard to the injuries suffered by the petitioner. According to the Medico Legal Examination Certificate, the petitioner had suffered as many as four injuries on his person. There is no explanation in the written application as submitted by Rab Nawaz, the complainant of the cross-version case as to the manner and method and at whose hands, the petitioner suffered all the injuries during the occurrence. Similarly, in the FIR, it is not mentioned as to in what manner and at whose hands, Rab Nawaz, the injured of the cross-version case had received injuries on his person. In this manner, it can be safely concluded that both the parties have suppressed their roles in the occurrence and have not narrated the occurrence with full truthfulness. It would be the learned trial Court which would be in a better position to determine this aspect 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 versions of the incident is correct. It seems to be a case of brawl. 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 or a report, 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:
"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."
5. In view of the above discussion, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioner, namely Muhammad Sharif, by this Court vide order dated 23.04.2021, is confirmed subject to his furnishing of fresh bail bonds in the sum of Rs. 10,000/- (Rupees ten thousand only) with one surety in the like amount, to the satisfaction of learned trial Court.
6. 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.
(A.A.K.) Bail allowed
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