PLJ 2009 Cr.C. (Lahore) 30

Present: Khurshid Anwar Bhinder, J.

MUHAMMAD ASHRAF and another--Petitioners

versus

STATE--Respondent

Crl. Misc. No. 9005-B of 2008, decided on 23.10.2008.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 324, 148 & 149--Bail, grant of--Prayer for--Further inquiry--Injury on non-vital part--Cross firing between the parties had taken place resulting into injuries on both sides--Determination as to which one was aggressor party--Held: Cross version of the petitioners was recorded by the police and was investigated--Injuries attributed to the petitioners were on non-vital part of the body, whereas injury suffered from petitioner's side is on the vital part of the body, therefore, possibility of self-infliction is very remote--When cross firing took place and both the parties suffered injuries case of the accused persons become that of further inquiry into their guilt and it is upto the trial Court to determine as to which one was the aggressor party--Bail was admitted. [P. 32] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Bail, grant of--Further inquiry--Crime empties were not recovered from the place of occurrence--Indiscriminate firing--Effect of--No crime empties were recovered from the place of occurrence which was also serious lapse on the part of prosecution as indiscriminate firing from both the sides had taken place but no recovery of crime empties was effected from the place of occurrence--Petitioner's case is that of further inquiry into their guilty--Bail was granted. [P. 32] B

2008 PCr. L.J. 1139, 2004 P.Cr. L.J. 1766, 2004 PCr. L.J. 1875 &
1997 P.Cr. L.J. 112, rel.

Syed Makhdoom Hussain Gillani, Advocate for Petitioners.

Rai Abdul Ghafoor Kharal, Advocate for Complainant.

Shafqat Ullah Butt, DPG for State.

Date of hearing: 23.10.2008.

Order

The petitioners seek post arrest bail in case FIR No. 248/2007 dated 2.7.2007 registered under Sections 324 & 148/149 PPC at Police Station Satghar District Okara.

2. Precise allegations against the petitioners are that they while forming unlawful assembly had launched an attack on the complainant party resulting causing injuries to Shafqat and Bahadur Ali.

3. Learned counsel for the petitioners submits that it is a case of cross firing between the parties and two of the accomplices of the petitioners Muhammad Bashir and Aziz also suffered injuries during cross firing. Cross version of the petitioners was also recorded by the police and was investigated, therefore, it is yet to be determined as to which one was the aggressor party. He further submits that injury attributed to the petitioners is on the non-vital party of the body of the injured person, therefore, under the circumstances petitioner's case is clearly fall within the ambit of further inquiry into their guilt. In support of his arguments he has relied upon the cases reported as Saeed and another Vs. The State (2008 PCr. L.J. 1139), Munir Ahmed and 10 others vs. The State (2004 PCr. L.J. 1766), Muhammad Mumtaz vs. The State (2004 PCr. L.J. 1875), Shabbir and another vs. The State (1997 PCr. LJ 112).

4. Learned counsel for the complainant opposes bail application of the petitioners and submits that it is a day light occurrence and there was no question of identification of the present petitioners who were fully identified and specific role has been assigned to them. He further submits that the petitioners are also nominated in the FIR. He further submits that the petitioners while sharing common intention and forming unlawful assembly had launched an attack on the complainant party resulting into causing injuries to Shafqat and Bahadur Ali, therefore they are not entitled to the concession of bail.

5. Learned DPG also opposes bail application of the petitioners and submits that one of the petitioners Muhammad Ashraf who has been nominated in the FIR is found to be fully involved in the commission of offence as .12 bore gun was also recovered from him. As far as other petitioner Naseem Sadiq is concerned, no recovery has been

Cr.C. Asif Ali Zardari v. State PLJ
(Syed Pir Ali Shah, J.)

2009 Asif Ali Zardari v. State Cr.C.
(Syed Pir Ali Shah, J.)

effected from him, however, both the petitioners have been found guilty in police investigation, therefore, they are not entitled to be released on bail.

6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned DPG and have also perused the record. There is no denying the fact that as per facts and circumstances of the case and available evidence, cross firing between the parties had taken place resulting into injuries on both the sides. Cross version of the petitioners was also recorded by the police and was investigated. Injuries attributed to the petitioners are on the non-vital part of the body of Shafqat and Bahadur Ali, whereas injury suffered by Bashir Ahmed from petitioner's side is on the vital part of the body, therefore, possibility of self-infliction is very remote. In such like situation when cross firing took place and both the parties suffered injuries case of the accused persons become that of further inquiry into their guilt and it is up to the trial Court to determine as to which one was the aggressor party. Reliance can be placed on Shoaib Mehmood Butt vs. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845) and Sardar Munir Ahmed Dogar vs. The State (PLD 2004 SC 822). Moreover, no crime empties were recovered from the place of occurrence which is also serious lapse on the part of the prosecution as indiscriminate firing from both the sides had taken place but no recovery of crime empties was effected from the place of occurrence, therefore, petitioner's case is that of further inquiry into their guilt. I, therefore, admit them to post arrest bail subject to their furnishing bail bonds in the sum of Rs. 50,000/- with two sureties in the like amount each to the satisfaction of the learned trial Court/Illaqa Magistrate.

Petition stands disposed of.

(R.A.) Bail admitted.