DOST MUHAMMAD vs THE STATE

ORDER

Dost Muhammad petitioner through the instant petition seeks after arrest bail in case F.I.R. No.58 dated 12-3-2002 originally registered under sections 337-A(i)/337-A(ii)/ 337-F(i)/ 337-H(ii)/ 148/ 149, P.P.C. Police Station Mitru. Later on, the police have added section 302, P.P.C. In the instant case.

2. Briefly the allegation against him is that he with Sota has caused injury at the right wrist of the deceased Faiz Bakhsh.

3. It has been contended on his behalf that he has falsely been roped in; that there is delay of 18 days in lodging the F.I.R. That it is a case of two versions and in the same successive investigations were held and in the last investigation conducted by the D.S.P. Headquarters, Vehari, it has been found that in fact there was a free fight between the parties and in such circumstances, every accused found involved in the same, if it may be ultimately proved to be so, would individually be liable for his own act; that he has been ascribed injury with Sota to the deceased on his right wrist while according to his Medico Legal and post-mortem report no injury was found on his right wrist and this conflict brings his case within the purview of further inquiry as envisaged by subsection (2) of section 497, Cr.P.C.; that the existence of cross-version too would bring his case within the aforesaid provision of section 497, Cr.P.C. That he is behind the bars for the last about eight months; and that he is previous non-convict. In support of plea of bail reliance has been placed upon the case of Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCM R 1845 and Zafar Iqbal v. The State 1999 PCr.LJ 1840 Lahore.

4. Conversely the learned State Counsel assisted by the learned counsel for the complainant has opposed the application on the ground that he has caused injury in fact on the left arm of the deceased Faiz Bakhsh and as the complainant is illiterate person, so he could not know the difference between left and right arm and has wrongly mentioned his right wrist; that there is no reason with the complainant in the cross-version to falsely involve him in the instant case; that the offence entails capital punishment; that the challan stands submitted in the Court and the trial has commenced in the same; that in fact their side is aggrassor and the complainant party was aggressed upon.

5. I have carefully considered the arguments available on record.

6. According to the version of the complainant, he with Sota has caused injury at the right wrist of the deceased Faiz Bakhsh. I have gone through his initial Medico Legal Report as well as post- mortem report. No such injury has been found on his right wrist. The learned State Counsel assisted by the counsel for the complainant has also frankly conceded to this petition. However, the learned counsel for the complainant has submitted in this regard that the complainant being an illiterate person could not know the difference between the left and right arm and so he has wrongly mentioned such injury on the deceased's right arm while it was on the left arm.

7. Anyway, it is apparently a conflict in the narration of the version by the complainant against their side and the medical evidence.

8. Besides than this, it is a case of two versions. One from their side and the other brought forth by the complainant, in which he is seeking relief of bail. It may be relevant to mention here that initially the aforesaid case was registered on the statement of Jan Muhammad, co-accused and in the same on 12-3-2002 the complainant Ghulam Anwar has brought the cross-version. According to the learned counsel for the complainant, it was on 12-3-2002 so it is yet to be seen, that which of the parties was aggressor and who was aggressed upon and such function can be performed by the learned trial Court. However, it may also be advantageous to mention here that in the last investigation by the D.S.P., Headquarter, Vehari, it has been found that it was a case of free fight.

The learned counsel for the State has conceded to the same.

9. In the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCM R 1845, their Lordships in august Supreme Court have held that when there may be two versions by the rival parties, which party was aggressor and who has aggressed upon is a question to be gone into by the trial Court only after evaluation of the evidence recorded by it and not at the bail stage. Similar was the view expressed in case of Zafar Iqbal v. The State 1999 PCr.LJ 1840 Lahore, so his case is covered under subsection (2) of section 497, Cr.P.C. Calling for further inquiry into his guilt. As regards the plea regarding commencement of the trial, the same in no way, can be hurdle in the way of grant of bail when otherwise the case for the same is made out. In this regard reference can be made to the case of Muhammad Ismail v. Muhammad Rafiq and others PLD 1989 SC 585 and Munir v. The State 2002 M LD 712 Lahore. He is behind the bars and stated to be previous non- convict.

10. In these circumstances, I accept this application and submit him to bail in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.