How ‘cross-version’ of an event determines bail

Though police found cross-version false, the LHC had granted relief of post-arrest bail to accused

ISLAMABAD:

Defining the scope and meaning of “cross-version” in bail cases, the Supreme Court has said that mere existence of a cross-version is not a valid ground for deciding the case unless it is supported by the material available on record.

"The well-settled principle of law as to the effect of a cross version of the occurrence involved in a case, at bail stage, is that mere existence of a cross-version is not a valid ground for holding the case one of further inquiry to grant bail under Section 497(2) CrPC unless it is supported by the material available on record of the case and on tentative assessment of that material, the court either finds it prima facie true or remains unable to determine even tentatively which one of the two versions is prima facie true", a four-page judgment authored by Justice Syed Mansoor Ali Shah said in a bail matter.

A division bench of the apex court led by Justice Shah heard a case where accused Hussain and co-accused had shot one Atiqur Rehman at his place, which hit his head and proved fatal. The accused and co-accused presented a cross-version of the occurrence during the investigation, saying the complainant had abducted Hussain and that they had gone to rescue him. Though the police found the cross-version false, the Lahore High Court had granted the relief of post-arrest bail to the accused.

"It is in the latter situation where the court remains unable to determine even tentatively, which one of the parties is aggressor and which one is aggressed upon, that the case against both parties falls within the scope of further inquiry under Section 497(2), CrPC.

"The determination of “the aggressor and the aggressed upon”, whether tentatively at bail stage or finally on conclusion of trial, is relevant to decide culpability of a party for the occurrence as this determination consequently decide which one of the parties was assailant and which one acted in self-defence.

"When a court cannot decide even tentatively, at bail stage, such culpability of a party on the basis of material on record of the case, it leaves this matter for determination on conclusion of the trial after recording the prosecution evidence and the defence evidence, if produced, and gives the benefit of the requisite further inquiry to both parties by granting them bail under Section 497(2) CrPC.

"If the courts start considering every case involving a cross-version as one of further inquiry without any tentative assessment of the worth of the cross-version, it can encourage an accused to concoct a false or fabricated cross-version so as to bring his case within the ambit of further inquiry and thereby get bail.
"That is why the courts are to make a tentative assessment of the material, if any, available on record of the case in support of the cross-version at bail stage and should not readily accept it as a valid ground to treat the case one of further inquiry under Section 497(2) CrPC"

Present case

The court said that the cross-version pleaded in the present case by the accused party (respondent No.2 and his co-accused), when examined in the light of the above principle, is prima facie found not to be true on the basis of the tentative assessment of the material available on record of the case.
"Their version that the complainant party had abducted the accused Hussain is not supported by any cogent material available on record of the case.

"The petitioner and his co-accused had gone over to the place of the complainant party and the occurrence had admittedly taken place there. Further, the version of the complainant party is supported by the statements of the injured witnesses and other witnesses recorded under Section 161 CrPC as well as by the medical evidence and recoveries of the alleged weapons of offence.

"The tentative assessment of the said and other material available on record of the case prima facie shows that it is the accused party that were the aggressor. The version of the complainant party thus prima facie appears to be true.

"The shot that proved fatal for the deceased is attributed to respondent No.2 (accused) and the incriminating material available on record of the case provides reasonable grounds for believing that respondent No.2 has committed the offence of Qatl-i-amd punishable under Section 302 PPC, which falls within the prohibitory clause of Section 497(1), and there are no sufficient grounds for further inquiry into his guilt as envisaged by Section 497(2), CrPC.

"The High Court has erred in law while placing reliance upon the cross-version of the accused party for holding the case against respondent No.2 to be one of further inquiry, without referring to any material available on record of the case supporting it.

"The court said that although this court ordinarily refrains from interfering with bail granting orders of the High Courts, it does not shy away to perform its constitutional obligation to set the matter right for the safe administration of criminal justice when a High Court has made such an order in derogation of some settled principle of law, or when the order is found to be perverse or arbitrary.

"In the present case, while allowing the bail petition of respondent No.2 and making the impugned order the High Court has acted against the above said settled principle of law, and its finding recorded on the basis of an unsubstantiated cross-version is perverse, that is, against the weight of the material available on record of the case"

"Therefore, we convert this petition into appeal and allow the same: the impugned bail granting order is set aside and the bail petition of respondent No.2 is dismissed. Respondent No.2 shall surrender before the trial court."