NASEER AHMED vs STATE and another
This is a criminal petition seeking post-arrest bail in a cross-version case registered for offences including murderous assault and hurt under the Pakistan Penal Code. The core legal question is whether an accused in a counter-version case, where the police investigation found him empty-handed at the scene and where cross-versions exist, is entitled to bail on the ground of further inquiry. The Lahore High Court allowed the petition and granted post-arrest bail to the petitioner. The court held that cases involving counter-versions and competing accounts from both parties generally fall within the ambit of sub-section (2) of Section 497 of the Code of Criminal Procedure, as the determination of the true aggressor requires the recording and appraisal of evidence by the trial court. The key principle laid down is that in cross-cases, bail is normally granted for further inquiry to allow the trial court to assess which party initiated the aggression after examining the evidence.
- Whether a case involving counter-versions of an incident falls within the ambit of further inquiry for the grant of post-arrest bail under Section 497(2) of the Code of Criminal Procedure 1898?
- Does the presence of an accused as empty-handed at the scene of crime, as determined during police investigation, justify granting bail after arrest?
- Is the determination of which party was the aggressor in a cross-version case a matter to be decided by the trial court after recording evidence?
- Section 337-A(1), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 337-F(iii), Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Naseer petitioner seeks bail after arrest in cross version of case FIR No, 675/2007 dated 12.08.2007 offence under Sections 337-A(1), 337A(ii), 337-L(ii), 337-F(iii), 337-F(v), 324, 148 and 149 PPC registered at Police Station Sadar Tandlianwala, District Faisalabad. Precisely allegation against the petitioner is that he alongwith his co-accused in prosecution of their common object launched a murderous assault upon complainant party of the cross version and injured them.
2. Learned counsel for the petitioner, in support of this petition, contends that as a matter of fact the case was got registered at the instance of petitioner's side, however, the Police with mala fide intention registered a false cross version against the petitioner's side; that petitioner is behind the bars for the last about eight months; that during the investigation it was concluded that the petitioner though present at the place of occurrence but he was empty handed; that nothing was recovered from the petitioner, therefore, case of the petitioner is one of further inquiry within the ambit of sub-section (2) of Section 497, Code of Criminal Procedure and as such he is entitled the concession of bail.
3. Police Officer, present in the Court, states that he has effected the service of notice upon the complainant of the cross version but none is present on his behalf.
4. Learned Deputy Prosecutor General, opposes this bail application on the grounds that the petitioner is accused of causing injury to the injured; that the offence alleged against the petitioner is within the prohibitory clause of Section 497, Code of Criminal Procedure. However, after perusal of the record and on instructions from the Police Officer, the learned Deputy Prosecutor General confirms that vide Zimni No, 44 dated 05.01.2010 the Police concluded that petitioner though was present at the time of occurrence but he was empty handed.
5. I have heard learned counsel for both the sides. Petitioner is behind the bars for the last about eight months. During the investigation, Police has opined that the petitioner though present at the spot but he was empty handed. Admittedly the criminal law was set in motion by the petitioner's side and as such it is a case of two versions one set out in the FIR and the other in the cross version got recorded against the petitioner's side, which brings the case of the petitioner within the ambit of sub-section (2) of Section 497, Code of Criminal Procedure. The question as to which party was aggressor and which party was aggressed upon is to be determined by the learned trial Court after recording of the evidence of the parties. Reliance is placed on the case of "Shoaib Mehmood Butt Vs. Iftikhar-uI-Haq and three others" (1996 SCM R 1845) wherein, the Hon'ble Supreme Court of Pakistan, at page 1854, was pleased to observe as under:-- "16. In case of counter-versions arising from the same incident, one given by complainant in F.I.R. and the 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 enquiry as contemplated under Section 497(2), Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry 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. In cases of counter-versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmad (1976 SCM R 391) in cross-cases the High Court granted bail to the accused on the ground that there was probability of counter-version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in grating bail and no interference was warranted. In the same context, reference can be made to the case of Mst. Shafiqan v. Hashim Ali and others (1972 SCM R 682)."
6. For the foregoing, this petition is allowed and the petitioner is admitted to bail after arrest subject to his furnishing bail bond in the sum of Rs,50,000/- (rupees fifty thousand only) with one surety in the like amount to the satisfaction of learned trial Court.
7. Before parting with this order, it is clarified that the observations made in this order are tentative and relevant only for the purpose of this bail application and shall not influence the trial in any manner whatsoever.