JABBAR HUSSAIN SHAH and another vs STATE and another
This petition for pre-arrest bail arises from a cross-version criminal case involving charges under Sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860, following an incident of firing that resulted in multiple fatalities. The core legal question before the Court was whether the petitioners were entitled to pre-arrest bail in a situation where both parties to a conflict have lodged cross-FIRs, each claiming to be the victim of the other's aggression. The Court held that in cases involving cross-versions of the same incident, it is not possible to determine at the pre-trial stage which party was the aggressor and which was the victim. Relying on established Supreme Court precedents, the Court determined that such cases inherently fall within the scope of 'further inquiry' as contemplated under Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the Court confirmed the petitioners' pre-arrest bail, ruling that the determination of the true aggressor is a matter to be adjudicated by the trial court after a full evaluation of evidence.
- Does the existence of cross-versions in a criminal case entitle the accused to bail on the ground of further inquiry?
- Is the determination of the aggressor in a cross-version case a matter for the trial court after evidence is recorded?
- Can pre-arrest bail be granted when there is a possibility of false implication in a cross-version incident?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Through this application the petitioners seek pre-arrest bail in cross-versi on registered under Sections 302/324/148/149, PPC in case FIR No, 125/2018 vide Rapt No, 1/18 dated 3-5-2018 at Police Station Sahoka, District V ehari.
2. According to the cross-version, on 3-5-2018 at about 12:40 p.m. Respondent No, 2 (Complainant of cross- version) was sitting in his house alongwith Abdul Wahid, Javed Shah, Nasir Ali and Shahid Ahmad. All of a sudden they heard the reports of firing whereupon they went to the roof top to see what had happened. They saw the Petitioners and their co-accused firing. In the meanwhile, Mukhtar Shah son of Rasheed Shah raised lalkara commanding his accomplices to teach the complainant party of this cross-version a lesson for abducting his wife Sidra Bibi. Petitioner No, 1 (Jabbar Hussain) who was armed with .30-bore pistol fired a straight shot at Nasir Ali which hit him on the head whereas Petitio ner No, 2 (Ali Haider) shot with repeater .12-bore gun which hit Javed Ali Shah on his head and face. Respondent No, 2 and others named hereinabove saved their lives while lying on the roof. Respondent No, 2 further alleged that Mukhtar Shah son of Rasheed Shah and his wife Sidra Bibi were injured when they came within the range of firing of their own men. Subsequent ly, Nasir Ali and Javed Ali Shah succumbed to their injuries. From the other side Mukhtar Shah too did not survive.
3. I have heard the learned counsel and perused the record. Admittedly , it is a case of two versions. Petitioner No 2 (Ali Haider \ Shah) lodged FIR No, 125/2018 alleging that Mukhtiar Shah son of an Sher Shah and his co-accused had attacked them and killed his father and step-mother . The question as to which party was the aggressor and which was aggressed upon would be decided by the learned trial Court after recording evidence. This makes the case of the Petitioners one of further inquiry . Possibility of false implication cannot be ruled out. In "Shoaib Mehmood Butt v . Iftikhar -ul-Haq and 3 others" (1996 SCMR 1845 ), the Hon'ble Supreme Court of Pakistan held: "In case of counter-version arising from the same incident, one given by Complainant in FIR 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."
Again, in "Muhammad Zahid Umar v . The State and others" ( 2016 SCMR 1246 ), the Apex Court observed: "Prima facie, both the parties have given their own version qua the manner in which this incident took place.
Chances of suppression of real facts by both the parties cannot be ruled out. However , it is for the learned trial Court to determine, after elaborate evaluation of the evidence to be recorded by it, as to which party was the aggressor and who was aggressed upon."
The above view was reiterated in "Ghulam Abbas v . The State and others" ( 2016 SCMR 2048 ).
4. For what has been discussed above, this application is allowed. Ad-interim pre-arrest bail already granted to the Petitioners is confirmed subject to their furnishing bail bonds in the sum of Rs,200,000/- (Rupees two hundred thousand) each with one surety each in the like amount to the satisfaction of the learned trial Court.