Amanullah son of Muhammad Bukhsh seeks his post arrest bail in case FIR No, 243/2003. dated 3.9.2003 registered at P.S. Cantt, Sargodha for an offences under Sections 324, 452/34 PPC.
2. The case of the prosecution as unfolded in the FIR lodged by Zafar Iqbal son of Bashir Ahmad was that he was a resident of Kotmomen and was visiting his maternal uncle Ghulam Rasool at Sultan Colony; at 8:30 p.m he alongwith Muhammad Nawaz son of Ahmed Khan, Mst. Safia wife of Ghulam Rasool and Ghulam Rasool son of Mattli Khan his paternal uncle were sitting in a verandah of the bungalow wherein electricity bulbs were burning; a car appeared at the gate of the house from which the petitioner armed with a pistol, Nasrullah armed with a pistol with another unknown person also armed with a pistol alighted and entered in the bungalow; Nasrullah raised a lalkara that they would not leave Ghulam Rasool alive; Amanullah petitioner made two successive fire- shots at Ghulam Rasool hitting him at his right shin; the unknown person made two fireshots with his pistol which hit Mst. Safia on her left hand and left breast; Nasrullah kept on indulging in aerial firing; he and Muhammad Nawaz witnessed the occurrence and raised hue and cry as a result of which the accused persons fled in the car.
3. The motive according to the complainant was that Ghulam Rasool had taken back some money from Amanullah who was reluctant to pay back which had resulted in exchange of abuses between Amanullah and Ghulam Rasool. According to the complainant on account of this reason the accused persons after due deliberation and consultation had entered the house and launched a murderous assault. Resultantly the instant FIR was recorded.
4. The petitioner was arrested on 7.9.2003 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned additional Sessions Judge, Sargodha, who dismissed the same vide his order dated 30.1.2004. Hence the instant petition.
5. Chaudhary Muhammad Asif Ranjha, Advocate in support of petitioner's plea for post-arrest bail argued that the petitioner has falsely been implicated in the case and the fact that he is the real maternal nephew of injured Ghulam Rasool has deliberately been concealed in the FIR; that the principal accused namely Nasrullah the brother of the petitioner around whom the motive revolves has since been declared innocent by the police by accepting his plea of alibi; that Zafar Iqbal the complainant is the first cousin of the petitioner and in fact engagement of Zafar Iqbal's sister with Nasrullah had been broken as a result of which Zafar Iqbal started harbouring grudge against the petitioner and his family as a result of which the instant FIR had been registered; that the story as narrated in the FIR is quite improbable and the motive narrated in the FIR is just an eyewash; that the petitioner's mother happens to be a real sister of Ghulam Rasool and both of them are having best of relations as such it cannot be imagined that the petitioner would launch a murderous assault on his real maternal uncle; that the petitioner could not have participated in the occurrence inasmuch as exactly on the same day and time a case had been registered against the petitioner on the report of one Abdul Razzaq at Police Station Kirana Tehsil Sargodha under Sections 379/411 PPC for committing theft of buffaloes; that on having been bailed out in the said case on 17.3.2003 he was arrested in the titled case. He also argued that there was serious conflict in the medico legal report and the account as given in the FIR inasmuch as the doctor had found only one injury on the leg of Ghulam Rasool. He argued that the petitioner's case is one for further inquiry. In support of this contention he relied on 'Muhammad Saleem vs. The State PLD 1989 Lahore 233, Zafar Ali us. The State PLJ 1996 Cr.C. Lahore 1636, Muhammad Khurshid vs. The State PLJ 1996 Cr.C. Lahore 1837, Muhammad Afsar vs. The State 1994 SCMR 2051, Muhammad Akram vs. The State PLJ 1996 Cr.C. 312.
6. On the other hand Mr. Allah Bakhsh Gondal the learned counsel for the complainant as also Mrs. Rukhsana Tabassum the learned counsel for the State have opposed the grant of bail to the petitioner. It was argued that it was a promptly lodged FIR and specific role had been attributed to the petitioner; that a pre-planned attack had been launched at the house of Ghulam Rasool after due deliberation and consultation and that there was no reason for Ghulam Rasool to have falsely implicated his nephew in the case. They also argued that in order to appreciate the arguments advanced by the learned counsel for the petitioner, deeper appreciation of the material available on the record is required which could not be undertaken while deciding his bail application.
7. I have considered the arguments of the learned counsel at considerable length and have also carefully examined the record brought by Muhammad Riaz Khan S.I. The allegation against the petitioner is that he caused two injuries with his pistol which hit Ghulam Rasool at his right shin.
However, according to the medico legal report there is only one exit would noted as a firearm wound of entry 13 c.m x 1 c.m on inner and upper part of right leg about 10 c.m. from right knee joint.
The other injury was an exit wound 2 cm x c.m with everted margins on front and middle part of right leg. As such prima facie it appears that the victim received only one fire-shot injury. There is no allegation that the petitioner caused any other injury to any one else although he was allegedly armed with a pistol. It is also not denied that Nasrullah against whom the motive has been attributed and who was allegedly accompanying the petitioner had been declared innocent and his plea of alibi had been accepted. The post-arrest bail granted to him by the learned trial Court on 7.4.2004 has not been challenged so far. In the case of Muhammad Saleem us. The State PLD 1989 Lahore 233, it was held that finding of innocence, though given in favour of co-accused alone creates some doubt about other accused persons as well as material for both the accused persons was the same. It was held that benefit of any doubt has to be given to accused even at the bail stage. In the case of Zafar Ali vs. The State PLJ 1996 Cr.C. Lahore 1936, bail was granted to the accused because the injured PW had been avoiding to appear before the Medical Board and the injury attributed to him had been found to be simple in nature. Muhammad Khurshid vs. The State.
PLJ 1996 Cr.C. Lahore 1987 was a case wherein this Court, while dealing with the bail application of the petitioner under Section 324 PPC had observed that locale of injuries is of much relevance to determine the intention or knowledge of the accused as envisaged by Section 324 PPC. In the said case the accused had been granted bail who had been assigned injure on the ankle which was non-vital part of the body. In Muhammad After vs. The State 1994 SCMR 2051, the Honourable Supreme Court allowed bail to the petitioner as the gun injury received by the victim was on his ankle which was a non-vital part of the body besides it was found to be simple one and the Honourable apex Court held that it was yet to be seen if the accused intended to kill the victim. In the case of Muhammad Akram vs. The State PLJ 1996 Cr.C. 312, the petitioner was granted bail although he had caused two fireshot wounds on the right shin and thigh of the injured, which were considered to be non-vital parts of body. The precedents quoted by the learned counsel for the petitioner fully support his contentions. In view of the role attributed to the petitioner his culpability under Section 324 PPC and his common intention with his co-accused in my opinion calls for further probe within the meanings of sub-section (2) of Section 497 Cr.P.C. The offence under Section. 337-F(iii) which had been added later on does not attract the prohibitory clause of Section 497 (1) Cr.P.C. The petitioner is in custody for the last more than 10 months and the trial has not even commenced. He cannot be retained in custody indefinitely as a measure of punishment.
8. Rdsultantly this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of the learned trial Court.