MUKHTIAR SHAH vs STATE and another
This is a criminal petition seeking post-arrest bail in a case involving charges under Sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner is entitled to bail when the case involves cross-versions of the same incident, where both the complainant party and the accused party allege the other was the aggressor and both sides suffered casualties. The court held that in instances of cross-versions arising from the same incident, the determination of which version is true requires a detailed appraisal of evidence, which is the province of the trial court. Consequently, the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The court granted bail to the petitioner, establishing the principle that where cross-cases exist, the uncertainty regarding which party acted as the aggressor constitutes sufficient grounds for the grant of bail pending trial, as the trial court must record and evaluate evidence to resolve the conflicting versions.
- Does the existence of a cross-version in a criminal case entitle an accused to bail on the ground of further inquiry?
- Is a case involving conflicting versions of an incident, where both parties suffered casualties, suitable for the grant of bail under Section 497(2) of the Code of Criminal Procedure 1898?
- Should the determination of which party was the aggressor in a cross-case be decided at the bail stage or by the trial court?
- 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 petitioner seeks post-arrest bail in case FIR No, 125/2018 dated 3.5.2018 registered at Police Station Sahoka, District V ehari, for of fences under Sections 302/324/148/149, PPC. -
2. Briefly , the allegation against the petitioner is that on 3.5.2018 at about 12:00/01 :00 p.m. he and his co-accused while armed with deadly weapons formed an unlawful assembly and in prosecution of its common object attacked the complainant party . As a result, Complainant's father (Mukhtar Shah son of Rasheed Shah) was killed and his step-mother Sidra Bibi was injured.
3. I have heard the learned counsel and perused the record. It is observed that this is a case of two versions. The Complainant lodged FIR No, 125/2018 alleging that the petitioner and his co-acc used attacked the complainant party and killed his father and injured his step-mother . He alleged that the petitioner made a straight fire shot with Repeater .12-bore at Mukhtar Shah dece ased which hit his head and face. The second version has been put forth by the Petitioner himself who got Cross-version No, 1/2018 dated 3-5-2018 registered under Sections 302/324/148/149, PPC according to which the complainant party of the aforementioned FIR was the aggressors.
Admittedly , two persons lost their lives from the Petitioner's side while one was killed and another was injured from the Complainant's side. The question as to which version is correct would be decided by the learned trial Court after recording evidence. This makes the case of the Petitioner one of further inquiry as contemplated in Section 497(2), Cr.P.C. In this respect I am guided by the observations contained by the Hon'ble Supreme Court of Pakistan in "Shoaib Mehmood Butt v . Iftikhar-ul-Haq and 3 others" ( 1996 SCMR 1845 ): "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. 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 SCMR 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 accus ed 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 granting 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 SCMR 682 )."
The above view was reiterated recently in "Ghulam Abbas v . The State and others" ( 2016 SCMR 2048 ).
4. The Petitioner is behind the bars since his arrest. He has joined the investigation and is not required by the police for any further probe. His trial is not likely to be concluded in the foreseeable future. No useful purpose would be served in keeping him behind the bars for an indefinite period.
5. For what has been discussed above, this application is allowed. The Petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,200,000/- (Rupees two hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court.