2023 S C M R 330

[Supreme Court of Pakistan]

Present: Ijaz ul Ahsan, Munib Akhtar and Sayyed Mazahar Ali
Akbar Naqvi, JJ

MUHAMMAD UMAR WAQAS BARKAT ALI---Petitioner

Versus
The STATE and another---Respondents

Criminal Petition No. 352-L of 2022, decided on 23rd November, 2022.

(On appeal against the order dated 21.02.2022 passed by the Lahore
High Court, Lahore in Criminal Misc. No. 8593-B of 2022)
(a) Criminal Procedure Code (V of 1898)---
----Ss. 498 & 497(2)--- Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii),
337-F(v), 354, 148 & 149--- Constitution of Pakistan, Art. 185(3)---
Murderous assault---Ad interim pre-arrest bail, confirmation of---Case
of cross-versions---Further inquiry---Admittedly father of the present
accused had firstly lodged an FIR against the complainant of the
present case with the allegation that the complainant and his co-
accused severely beat two of his sons and caused them several
injuries---Medico legal certificates available on record prima facie
support the accusation of father of accused---After six days of the
incident complainant lodged the present cross-version FIR, wherein he
nominated the present accused---Stance of the accused was that infact
the complainant party was the aggressor and they had just exercised
their right of self-defence---Opinion of the Investigating Officer
regarding the overt act of the accused had to be evaluated after
recording of evidence as an abundant caution---Possibility of false
implication of accused just to pressurize the accused side to gain
ulterior motives could not be ruled out ---Trial Court after recording of
evidence would decide about the guilt or otherwise of the accused and
until then he could not be put behind the bars for an indefinite period-
--Present case was of two versions narrated before the Court, thus, it
squarely fell within the ambit of (further inquiry) section 497(2),
Cr.P.C.---Petition for leave to appeal was converted into appeal and
allowed, and ad-interim pre-arrest bail granted to the accused was
confirmed.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Constitution of Pakistan, Art. 185(3)---Pre-arrest bail---Merits
of the case---Merits of the case can be touched upon while adjudicating
extraordinary relief of pre-arrest bail.
Miran Bux v. The State PLD 1989 SC 347; Sajid Hussain alias Joji v.
The State PLD 2021 SC 398; Javed Iqbal v. The State 2022 SCMR 1424
and Muhammad Ijaz v. The State 2022 SCMR 1271 ref.
(c) Criminal Procedure Code (V of 1898)---
----Ss. 497(2)---Constitution of Pakistan, Art. 185(3)---Bail---Case of cross-
versions---Further inquiry---Where there is a case of two versions
narrated before the Court, it squarely falls within the ambit of (further
inquiry) section 497(2), Cr.P.C.
Khalid Masood Sandhu, Advocate Supreme Court for Petitioner
along with Petitioner.
Mirza Muhammad Usman, D.P.G., Hassan Farooq, D.S.P. and Abdul
Razzaq, ASI for the State.
Date of hearing: 23rd November, 2022.
JUDGMENT
SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant
petition under Article 185(3) of the Constitution of Islamic Republic of
Pakistan, 1973, the petitioner has assailed the consolidated order dated
14.02.2022 (separate order dated 21.02.2022) passed by the learned
Single Judge of the learned Lahore High Court, Lahore, with a prayer
to grant pre-arrest bail in a cross-version recorded under sections 337-
A(i) / 337-A(ii) / 337-F(v) / 354/148/149, P.P.C. in case registered vide FIR
No. 990/2021 dated 20.11.2021 under sections 337-A(iii)/337-F(i)/337-
F(v)/337-L(2)/148/149, P.P.C. at Police Station Mustafaabad, District
Kasur, in the interest of safe administration of criminal justice.
2. Briefly stated the allegation against the petitioner is that on
17.11.2021 at about 12:15 p.m., he along with co-accused while armed
with firearms launched an attack on the complainant party and
inflicted a rifle butt blow on the forehead of the complainant of the
cross-version namely Muhammad Aslam. Co-accused Tahir Mehmood
was also ascribed an injury at the left arm below elbow of the
complainant, which was allegedly caused by a butt blow of pistol.
However, during investigation, the same was also attributed to the
present petitioner. The motive behind the occurrence was that
allegedly the petitioner wanted to take forcible possession of the land
belonging to the complainant.
 3. At the very outset, it has been argued by learned counsel for the
petitioner that the petitioner has been falsely roped in this case
against the actual facts and circumstances. Contends that the father of
the petitioner namely Barkat Ali had lodged the FIR against the
complainant of the cross-version and as a counterblast the instant
cross-version was recorded. Contends that two brothers of the
petitioner had also received serious injuries during the occurrence.
Contends that the cross-version was recorded with an inordinate delay
of six days, which speaks volumes against its authenticity. Contends
that it is a case of two versions and it is yet to be determined, which
party was aggressor. Contends that a false and frivolous story has been
concocted in the cross-version just to harass, humiliate and blackmail
the petitioner's party. Lastly contends that the case of the petitioner
requires further inquiry within the meaning of section 497(2), Cr.P.C.,
therefore, he may be granted bail.
4 On the other hand, learned Law Officer has defended the
impugned order. It has been contended that the petitioner is
specifically nominated in the cross-version for causing injuries on the
person of the complainant, therefore, he does not deserve any leniency
by this Court.
5. We have heard learned counsel for the parties at some length and
have perused the available record with their able assistance.
There is no denial to this fact that ii was the father of the petitioner
Barkat Ali, who had firstly lodged FIR No. 990/2021 under sections 337-
A(iii)/337-F(i)/337-F(v)/337-L(2)/148/149, P.P.C. against the complainant
of the cross-version namely Muhammad Aslam and his co-accused
wherein he alleged that the said Muhammad Aslam and co-accused
have severely beaten his two sons Rana Amir and Rana Nasir and
caused several injuries on their bodies. The medico legal certificates
available on record prima facie support the accusation. It was after six
days of the incident that Muhammad Aslam lodged the cross-version
wherein he nominated the present petitioner. It is the stance of the
petitioner that in-fact the complainant party was the aggressor and
they have just exercised their right of self-defence. In the cross-
version, the complainant had ascribed the injury on his left arm below
elbow to the co-accused Tahir Mehmood. However, during
investigation, the stance of the complainant was found to be not true.
Although, the said injury was attributed to the present petitioner but
nonetheless, it raises serious question about the veracity of the
complainant's allegations. The opinion of the Investigating Officer
regarding the overt act of the petitioner has to be evaluated after
recording of evidence as an abundant caution. In this view of the
matter, the possibility of false implication just to pressurize the
petitioner's side to gain ulterior motives cannot be ruled out.
Otherwise, it has been held by this Court in various judgments that
merits of the case can be touched upon while adjudicating
extraordinary relief of pre-arrest bail. Reliance is placed on Miran Bux
v. The State (PLD 1989 SC 347), Sajid Hussain alias Joji v. The State (PLD
2021 SC 898), Javed Iqbal v. The State (2022 SCMR 1424) and
Muhammad Ijaz v. The State (2022 SCMR 1271). In these circumstances,
it is the Trial Court who after recording of evidence would decide
about the guilt or otherwise of the petitioner and until then he cannot
be put behind the bars for an indefinite period. It is settled law that
liberty of a person is a precious right, which has been guaranteed
under the Constitution of Islamic Republic of Pakistan, 1973, and the
same cannot be taken away merely on bald and vague allegations. It is
a case of two versions and it is established principle of law that where
there is a case of two versions narrated before the Court, it squarely
falls within the ambit of section 497(2), Cr.P.C.
6. For what has been discussed above, we convert this petition into
appeal, allow it, set aside the impugned order dated 14.02.2022 to the
extent of the petitioner and confirm the ad interim pre-arrest bail
granted to the petitioner by this Court vide order dated 08.11.2022. The
above are the detailed reasons of our short order of even date.
MWA/M-81/SC Bail confirmed.