PLJ 2024 Cr.C. (Note) 58
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
UMAR HAYAT--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 3988-B of 2022, decided on 22.9.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 498/198-A--Pakistan Penal Code, (XLV of 1860), Ss. 337-A(ii)/ 337-A(i)/337-L(ii)/337-F(v)/337-F(i)/148/149--Cross-version--Pre-arrest bail--Confirmation of--Events which took place and were reported to the police by way of the FIR and by way of the cross-version case--Both the parties have suppressed their roles in the occurrence and have not narrated the occurrence with full truthfulness--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--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 cross-version such cases call for further inquiry and probe--The arrest of the petitioners is not necessary for the purpose of recovery--Involvement of the petitioners in the case seems to be based on malafide--Ad-interim pre-arrest bail already granted to the petitioners are confirmed. [Para 5 & 6] A, B, C, D, E, F, G
PLJ 2018 SC 445; 1996 SCMR 1845; 2016 SCMR 2048;
PLD 2017 SC 730 ref.
Khawaja Qaiser Butt, Advocate with Petitioner (in Crl. Misc. No. 3988-B of 2022) and Complainant of the cross-version case (in Crl. Misc. No. 4234-B of 2022).
Sardar Shahid Pervaiz Dogar, Advocate with Petitioners (in Crl. Misc. No. 4234-B of 2022) and for Complainant/Respondent No. 2 (in Crl. Misc. No. 3988-B of 2022).
Syed Nadeem Haider Rizvi, Deputy District Public Prosecutor for State.
Date of hearing: 22.9.2022.
Order
By way of this order, Crl. Misc. No. 3988-B of 2022, titled “Umar Hayat vs. The State and another” and Crl. Misc. No. 4234-B of 2022, titled “Sabir Javed and two others vs. The State and another”, arising out of the same FIR and its cross-version case, are being decided.
2. Through Crl. Misc. No. 3988-B of 2022 filed under Section 498 Code of Criminal Procedure, 1898, the petitioner, namely, Umar Hayat, seeks pre-arrest bail in the case FIR No. 311 of 2022, dated 05.04.2022, registered in respect of offences under Sections 337-A(i), 337-F(v), 337-L(2), 452, 148 and 149, PPC, registered at the Police Station Gaggo, District Vehari, whereas through Crl. Misc. No. 4234-B of 2022, the petitioners, namely Sabir Javed, Abid Javed and Nadeem Javed, seek pre-arrest bail in the cross-version case lodged on the report of Muhammad Pervaiz, the Complainant of the cross-version case and registered through Rapt No. 05, at the same Police Station, in respect of offences under Sections 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 and 149, PPC, relating to the same FIR.
3. The allegations against the petitioner, namely Umar Hayat (the petitioner in Crl. Misc. No. 3988-B of 2022), culled from evidentiary material produced before the Court, are that he alongwith his co-accused, trespassed into the house of the complainant of the case and the petitioner, while armed with a Sota, gave a blow of the same, hitting on the thumb of left hand of Sabir Javed, the Complainant of the case F.I.R. No. 311 of 2022 (the Petitioner No. 1 in Crl. Misc. No. 4234-B of 2022). The allegations against the petitioners, namely Sabir Javed, Abid Javed and Nadeem Javed (the petitioners in Crl. Misc. No. 4234-B of 2022), culled from evidentiary material produced before the Court, are that they along with their co-accused, attacked the complainant party of the cross-version case lodged on the report of Muhammad Pervaiz and registered through Rapt No. 05 and the petitioner namely Nadeem Javed, while armed with a Sota, gave a blow of the same, hitting Muhammad Shafi, the injured witness of the cross-version case, on his head, whereas the petitioner namely Sabir Javed, while armed with a hatchet, gave blows of the same, hitting near the left ear and right ear of Mulazim Hussain, the injured witness of the cross-version case and gave another blow of the same, hitting on the head of Umar Hayat, the injured witness of the cross-version case (the petitioner in Crl. Misc. No. 3988-B of 2022), whereas the petitioner namely Abid Javed, while armed with a hatchet, gave a blow of the same, hitting on the head of Rabia Bibi, the injured witness of the cross-version case.
4. I have heard learned counsel for the petitioners in both the petitions, the learned counsel for the complainants in both the petitions, the learned Deputy District Public Prosecutor and have perused the record with their able assistance.
5. These are pre-arrest bail petitions and only a tentative assessment of the evidentiary material produced before the Court is to be made at this stage. It is discernable from the record of the case that events which took place on 03.04.2022 were reported to the police by way of the FIR No. 311 of 2022, lodged on the report of Sabir Javed, the complainant of the FIR (the Petitioner No. 1 in Crl. Misc. No. 4234-B of 2022) and by way of the cross-version case lodged on the report of Muhammad Pervaiz and registered through Rapt No. 05 at the same Police Station. According to the narrative of the FIR, during the occurrence, Sabir Javed and Nadeem Javed (the petitioners No. 1 and 3 in Crl. Misc. No. 4234-B of 2022), were injured whereas according to the narrative of the incident as contained in the cross-version case lodged on the report of Muhammad Pervaiz and registered through Rapt No. 05, Umar Hayat (the petitioner in Crl. Misc. No. 3988-B of 2022), Muhammad Shafi, Mulazim Hussain, Muhammad Shahbaz and Rabia Bibi were injured. All the above mentioned injured namely Sabir Javed and Nadeem Javed (the Petitioners No. 1 and 3 in Crl. Misc. No. 4234-B of 2022), the injured witnesses of the FIR case as well as Umar Hayat (the petitioner in Crl. Misc. No. 3988-B of 2022), Muhammad Shafi, Mulazim Hussain, Muhammad Shahbaz and Rabia Bibi (the injured witnesses of the cross-version case) were examined by the Medical Officers and Medico-Legal Examination Certificates were issued with regard to the injuries received by them. In the FIR, there is no explanation as to in what manner and at whose hands, Umar Hayat (the petitioner in Crl. Misc. No. 3988-B of 2022), Muhammad Shafi, Mulazim Hussain, Muhammad Shahbaz and Rabia Bibi (the injured witnesses of the cross-version case) received injuries. Similarly, in the cross-version case lodged on the report of Muhammad Pervaiz and registered through Rapt No. 05, there is no explanation as to in what manner and at whose hands, Sabir Javed and Nadeem Javed (the petitioners No. 1 and 3 in Crl. Misc. No. 4234-B of 2022) received injuries during the occurrence. 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 and the fact that which party was the aggressor and which party was aggressed upon. It has been observed that it seems to be 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 cross-version such cases call for further inquiry and probe. It is yet to be determined as to which party was the aggressor and which party was 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.”
The learned Deputy District Public Prosecutor has vehemently argued that recoveries are yet to be effected from the petitioners, hence, they do not deserve the extraordinary relief of pre-arrest bail. Suffice it 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 collect 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 seems to be based on malafide 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 enunciated:
“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, both the petitions Crl. Misc. No. 3988-B of 2022, titled “Umar Hayat vs. The State and another” and Crl. Misc. No. 4234-B of 2022, titled “Sabir Javed and two others vs. The State and another” are allowed and ad-interim pre-arrest bail already granted to the petitioner, namely Umnar Hayat (the petitioner in Crl. Misc. No. 3988-B of 2022) by this Court, vide order dated 14.06.2022 and ad-interim pre-arrest bail already granted to the petitioners, namely Sabir Javed, AbidJaved and Nadeem Javed (the petitioners in Crl. Misc. No. 4234-B of 2022), by this Court vide order dated 22.06.2022, are 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 to the satisfaction of the learned trial Court.
7. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.
(M.A.B.) Petition allowed
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