IN THE HIGH COURT OF SINDH AT KARACHI

                          Cr. Bail Application No. 07 of 2013

Date	Order with signature of Judge

1.For orders on M.A.No.18/2013

2.For Hearing.

21.02.2013

         Mr. S. Suleman Badshah, advocate for the applicants

Mr. Shujaat Ali Khan, advocate for the complainant

Mr. Abdullah Rajput, APG.

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O R D E R

Aqeel Ahmed Abbasi, J:  Being aggrieved and dis-satisfied with the order dated 04.12.2012 passed by the learned Vth Additional Sessions Judge, Karachi West in Bail Application No.1298 of 2012, Crime No. 225/2012 under section 324/34 PPC registered at P.S. Docks, Karachi, whereby bail of the applicants was dismissed, the applicants have filed instant bail application under section 497 Cr.P.C seeking their release on bail subject to furnishing surety.

2.       Brief facts as stated in the FIR are as under:

“At the verbatim of the complainant statement u/s 154 Cr.P.C recorded in Civil Hospital Karachi, which reads as under:

“I, reside near Al-falah Chowk Mohammadi Colony Karachi. On 09.09.2012 I was available at my home at 9.00 AM my grandsons namely Khalid and Osama were beaten by Hussain son of Noor Muhammad and his companions on plucking of the flower. My son Abdul Raheem went for complaint to Hussain and his companions as to why they have beaten the Children. On this, Hussain annoyed and opened fire upon my son, his companions were standing nearby. My son received injuries on his chest, stomach and left leg. I rushed there and brought my son to Civil Hospital who is in Operation Theater and is under treatment. My complaint is against Hussain and his three identifiable companions for causing injury to my son with intention to kill him with weapon. Action be taken against them.”

3.       Learned counsel for the applicants states that the applicants are innocent and have been falsely implicated in the instant crime, whereas they have not been nominated in the FIR. Per learned counsel, this is a case of counter version, whereas an FIR No.226/2012 was got registered by Hassan Muhammad brother of Hussain Muhammad against the complainant party under section 302/34 PPC of the same incidence. It is contended that the applicant namely, Zarif Khan is the eye-witness in the above FIR, who has been falsely implicated at the instance of injured Abdul Rahim, whose statement was recorded after the delay of about 10 days, which has not been explained, whereas applicant Asif Khan is cousin of the deceased. Per learned counsel, statement of prosecution witness Gulzar, who is real brother of injured Abdul Rahim was also recorded after delay of 20 days, which is not explained, whereas the entire story has been concocted in connection with the counter murder of deceased namely Hussain. Per learned counsel, neither any recovery of weapon has been effected from the possession of applicants nor any identification has been made. It has been contended that this is a case of counter version wherein the applicants have not been nominated in the FIR, hence the matter requires further inquiry. In support of his contention, learned counsel has placed reliance.

1.       Mehmood Ahmed v. The State 1995 SCMR 127

2.       Imran Ashraf v. The State 2001 SCMR 424

3.       Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845

4.       Conversely, learned counsel for the complainant has opposed the grant of bail to the present applicants and submits that the applicants have been nominated by the injured Abdul Rahim, whereas there is no delay in lodging the FIR. It is further stated that since the parties are known, therefore, there is no need for identification. However, while confronted as to why the name of the applicant was not mentioned in the FIR if the parties knew each other, learned counsel could not explain such position. Learned APG has adopted the arguments of the counsel for the complainant.

5.       I have heard both the learned counsel as well as APG and perused the record of the case. On tentative assessment, it appears that this is a case of counter version as two F.I.Rs of the same incidence have been registered on the same day by both the parties whereas the applicants have not been nominated in the FIR. In FIR No.225/2012 registered by the applicants party one Hussain having received bullet injuries has succumbed to death. There is yet to be determined as to which party is aggressor and which party has been aggressed upon. Both the parties are reportedly known to each other, however, the applicants have been implicated after a considerable delay which appears to have not been explained. No recovery has been effected from the applicants, who are behind the bar since 04.12.2012 when their bail before arrest was rejected. In the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845, the Hon’ble Supreme Court has held as under:

“16.   In case of counter-versions arising from the same incident, one given by complainant in F.I.R 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 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 accused 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).”

6.       I am of the opinion that the applicants have made out a case for grant of bail at this stage as the matter requires further inquiry.  Accordingly, applicants are admitted to bail subject to furnishing surety in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.

7.       Needless to observe that the observations made hereinabove are tentative in nature and the learned trial court shall not be prejudiced by any such observations and shall decide the case on merits in view of the evidence available on record.

                JUDGE