MAHKUM DIN Versus State
ORDER
SHAHNAWAZ TARIQ, J.--- By this single order, I will dispose of Criminal Bail Application No.524 of 2013 vide FIR No.77 of 2013 and Criminal Bail Application No.547 of 2013 vide FIR No.91 of 2013, lodged by both the parties.
2. The relevant facts spelt out from FIR No.77 of 2013, are that complainant Sheraz Zaffar reported to police that on 21.07.2013, 23 nominated accused persons armed with specific deadly weapons along with 20 unknown persons trespassed into the house of complainant and caused fire arm injury to Mst. Khalida Parveen, while 3 other persons also sustained butt blows.
3. Accused Hafeezullah also lodged FIR No.91 of 2013, regarding the same incident against the complainant party narrating that they had purchased landed property from one Farooque Arain upon which complainant party was annoyed and on the fateful day, complainant party allegedly armed with deadly weapons attacked upon accused persons while they were working on their land, whereby injured Gulzar sustained bullet injury and 3 others sustained injuries caused by hard and blunt substance. Both parties have been granted interim pre-arrest bail by this Court separately.
4. Mr. Amanullah. G. Malik, learned Counsel for the applicants in Bail Application No.524 of 2013, contended that they are innocent and have been falsely involved in instant crime due to ulterior motives of the complainant; that both the parties are close relatives and accused had purchased landed property vide survey No.273 from the real owner Farooq Arain, whereupon complainant party became annoyed; that during the course of investigation 7 accused persons were declared innocent and 15 co-accused persons have already been granted bail by the learned trial Court on merits which also requires serious consideration; that sister of complainant Sheraz namely Mst. Saeeda Zafar had moved application to DIGP, Sukkur for re investigation of Crime No.91 of 2013 and Inspector Ghulam Ali Jumani re-investigated said crime and submitted his report which did not support the allegations of house-trespass into the house of complainant and causing damages to the house hold articles; that said Mst. Saeeda Zaffar also lodged FIR No.167 of 2014 against accused party along with Soofi Rehmatullah for commission of theft though he had already sold-out disputed land to the applicants and shifted to the Province of Punjab, which was disposed of under 'C' class; that Mohammad Naseem of the complainant party had also lodged FIR No.1116 of 2014 against applicant party, however, accused were acquitted vide judgment dated 08.08.2015; that complainant Sheraz Zaffar had also filed Criminal Misc. Application No.1564 of 2013 against applicants; that accused No.2 Hafeezullah has lodged instant FIR against the complainant party alleging almost the similar allegations, whereby applicant's father namely Gulzar sustained bullet injury and 3 other persons sustained injuries due to hard and blunt substance. Learned counsel referred pages Nos.83 and 85 of the file which are newspaper clipping of daily Express and daily Sindh regarding the alleged attack by the complainant party on the house of applicant Amir Mehmood, whereby his wife sustained injuries and complainant party took away gold ornaments, cash and other valuables. He relied upon the cases reported in 2012 MLD 1466, 2008 SCMR 1448, 1996 SCMR 1845, 2008 PCr.LJ 695, 2013 YLR 958 and 2011 SCMR 606.
5. While controverting the above submissions, Mr. Zulfiqar Ali Naich, learned Counsel for the complainant vehemently contended that accused in para-6 of bail application have stated that except accused No.6 Zameer Hussain, none was present on the spot at the time of alleged occurrence; that several FIRs were lodged by both the parties and cases were disposed of; that applicants have falsely alleged that incident occurred at landed property instead of inside the house of complainant Sheraz Zaffar; that on application of the complainant party a Medical Board was constituted and injury sustained by accused Munir was declared as Shujjah-i-Khafifah; that accused persons have lodged their FIR subsequently as such both cases are not counter cases and applicants are not entitled for concession of bail. He relied upon the cases reported in 2010 MLD 288, 2007 SCMR 1412, 2009 PCr.LJ 640, 2005 SCMR 1402 and PLD 2000 Lahore 74.
6. Learned APG contended that one person from each party sustained bullet injury while others sustained injuries by way of hard and blunt weapons; that re-investigation report was not approved by the concerned Judicial Magistrate as same was not conducted under the order passed by the Court of law; that Challans have already been submitted in both the criminal cases and parties are facing their trial before learned trial Court, therefore, pre-arrest bail already granted to both the parties may be confirmed.
7. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties emanate that complainant Sheeraz Zafar lodged FIR alleging the aggression on the part of applicants that 23 nominated persons armed with specific weapons along with 20 unknown culprits allegedly caused bullet injuries to Mst. Khalida Parveen and butt blows to 3 injured persons. Conversely, complainant Hafeezullah in counter FIR has alleged that complainant party armed with lethal weapons along with 11 unknown persons caused aggression while they were working on their land purchased from its original owner Soofi Rehmatullah, whereupon complainant party was allegedly annoyed, resultantly injured Gulzar sustained bullet injury on his left chest, while 3 persons sustained injuries by hard and blunt substances. Undeniably, both the parties are inimical and have lodged several FIRs against each other, which were either resulted into the acquittal of the accused persons or disposed of under cancelled class. Admittedly, the enmity is a double edge weapon and the Court has to consider the factum of animosity with due care.
8. Indeed, counter FIRs have been lodged by both the parties alleging the opposite party to be the aggressor, pertaining to the same incident occurred on same day and same time, as one party has alleged that incident occurred inside their house, whereas the other party asserted that incident happened on their landed property and persons from both sides sustained bullet injuries as well as injuries by hard and blunt substance. It is well settled that in case of counter versions arising out of same incident, the question of aggression cannot be decided at the bail stage and it is for the trial Court to thresh out the truth after recording the evidence that which party was aggressor and which party was aggressed upon and such cases fall within the canvas for grant of bail on the ground of further enquiry as envisaged under section 497(2), Cr.P.C. For this proposition reliance is placed on the case of Shoaib Mahmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845). It is also well established proposition that while deciding the question of bail, the Court will analyse the available material tentatively and will avoid from the deeper evaluation of evidence for the purpose of disposal of bail application which may not influence the findings of trial Court. It is also worthwhile to mention that both parties have concealed the material facts regarding causing injuries to the opposite side, which also requires serious consideration. Moreover, both the parties were granted interim pre-arrest bail by this Court respectively in the year 2013, and since then none of the parties has misused the concession of bail extended by this Court, therefore, in the present scenario recalling or declining the bail to either party will not serve any useful purpose.
9. Considering the above facts and circumstances, interim pre-arrest bail already granted to both the parties vide orders dated 24.09.2013 and 04.10.2013 respectively stand confirmed on the same terms and conditions. Parties are directed to attend the trial Court regularly. Consequently, Criminal Bail Applications Nos.524 of 2013 and 547 of 2013 stand disposed of.
10. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits.
YN/M-91/Sindh Order accordingly.