TARIQ PARVEZ KHAN, J.~ Jehanzeb the petitioner seeks bail in case registered vide FIR No. 245 of 22.4.1997 Police Station, Havelin.
2. The allegations against the petitioner are that he and his co-accused namely, Shabhir have caused injuries to Alamzeb father of the complainant. The occurrence is alleged to have taken place at "Sham-wela" and according to the report has been witnessed by the complainant, one Jehanzeb and Malak Akbar. The motive for the offence is that few days prior to the occurrence some altercation has taken place between the complainant and Shabir co- accused. Ln the report the petitioner is especially charged to have caused injuries in the abdomen of Alamzeb with some sharp object. Shabhir, the co-accused was allowed bail by the learned Additional Sessions Judge Abbottabad vide order dated 12.5.1997 while the request of the petitioner was refused hence this application.
3. Ln support of the petition the learned counsel for the petitioner submitted that the only independent witness namely, Malak Akbar named in the FIR has not supported the case of the complainant. He also submitted that from the facts as narrated by the complainant, it appears that they had attacked the accused party, lt was also argued that the site plan was prepared on 24.4.1997 and similarly statement of Jehanzeb (a brother of injured) was recorded on the said date which reflects on the absence of the complainant and Jehanzeb PW. Lt was also argued that from the site of occurrence blood was not recovered. Referring to the medical evidence it was submitted that there is only one sharp weapon injury which is on the abdomen and the complainant has failed to specify the weapon. Lastly it was argued that the petitioner stands charged under sections 337-F(iii)/34, PPC and punishment prescribed for the offence is upto 3 years beside liability to pay 'daman' and as such the petitioner is entitled to bail.
4. Learned counsel for the complainant submitted that the perusal of the FIR and keeping in view the nature of injury as observed by the doctor the offence, prima facie, would be covered by section 337-D to which the punishment prescribed is upto 10 year imprisonment. He also submitted that the petitioner is directly charged in the FIR and there is no reason for false accusation.
5. The learned Assistant Advocate-General while adopting the arguments of the learned counsel for the complainant added, that the Court is not bound to keep in view the section of law which has been incorporated in FIR by the police, but, the Court should consider the facts of the case and from its own independent opinion about the section of law which prima facie would be attracted to the facts of the case.
6. The petitioner, though charged in the FIR but a reading of the statement of Malak Akbar, a witness mentioned in the report, and the only witness who is not related to either party has come up with a different version. The seat of injury i.e. Abdomen also reflects on the intention of the appellant coupled with the fact that there is only one sharp weapon blow which has hot been repeated. The doctor has described the injury to be clinically grievous and the dimension of the sharp weapon injury given is 1-1/2/. There is no opinion of the doctor on the basis of which the nature of injury as to whether the same is Jaifah or Ghayr Jaifah is determined. The section of law namely, 337 F(iii) prescribes the term of imprisonment upto 3 years. No blood has been recovered from the spot from which it can be reasonably inferred that the sharp-edged weapon/instrument has not gone cavity deep into the body. There is yet another circumstance which was not taken up by the learned counsel for the petitioner but is apparent from the record that the shirt of victim Alamzeb was never taken into possession by the police except when the same was produced on 29.4.1997 and was being washed.
7. For reasons stated above I am of the view that there exist no reasonable ground to believe that the petitioner is guilty of the offence which is punishable with death, life imprisonment or 10 years, ln these circumstances the application for grant of bail is accepted. The petitioner is allowed bail provided he furnishes bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate Abbottabad.
My observations about the facts of the case are only tentative in nature and shall not have any effect on the case of the prosecution at the trial stage.