1. ' NADEEM AZHAR SIDDIQI, J.---The applicant is facing trial under Crime No,77 of 2004 dated 20-12- 2004 at 12-30 p.m. Of Police Station Miro Khan under sections 324, 248, 249 and 222, P.P.C. Read with section 337(Fi) Q.D. Ordinance. The F.I.R. Was lodged by Nadir Khan.
2. ' The facts as stated in the F.I.R. Are that on 19-12-2004 complainant namely Nadir Ali along with his grandfather Beero Khan and uncle Ghulam Ali were cutting wood from Beri trees when accused Abdul Sattar armed with gun, Abdul Ghaffar armed with hatchet and Abdul Jabbar armed with Lathi, Ali Gul armed with revolver and Sachal came there and informed the complainant party that land belongs to them and asked not to cut the tree. It was further stated in the F.I.R. That the accused Sachal instigated others to kill the complainant and on his instigation accused Abdul Sattar fired from his gun with intention to kill the grandfather which hit him at his left upper arm and left side of abdomen and back side of thigh. The complainant also intervened in order to rescue his grandfather but accused Abdul Sattar give him butt blow at his right side of shoulder and thereafter all the accused made good of their escape and complainant took his grandfather for first aid and removed in hospital and could not lodge report on 19-12-2004. Today when after leaving relative to lookafter the grand father came to report.
3. ' The allegation in the F.I.R. Is that accused persons in furtherance of their common intention and upon instigation of accused, Sachal, accused Abdul Sattar has fired from his gun to commit Qatl-i- Amd of grandfather over the landed dispute and injured him and so also caused butt blows.
4. ' The applicant was arrested on 28-12-2004.
5. ' The applicant filed bail application before the Court of II Assistant Sessions Judge, Kashmore who dismissed the same on 5-7-2005 with the following observations:-- "The record reveals that the name of the applicant/accused Abdul Sattar has been nominated in F.I.R. As main accused as he has fired at Biro Khan the grand father of the complainant which hit him and caused him injuries with intention to commit his Qati-i-Amd, at the instigation of co- accused Sachal. The applicant/accused also caused the butt blow of his gun at the right shoulder of complainant which has been supported by the Mashirnamas of injury dated 20-12-2004 prepared at 1300 hours by the police. The injuries on the person of injured Biro Khan, have also been corroborated by the medical certificate. The version of the complainant and injured, has also been supported by the witnesses in their 161, Cr.P.C. Statement. Furthermore the gun and its licence have been recovered from the possession of the applicant/accused which he has used in the commission of this crime vide Mashirnamas dated 9-1-2005. The delay in lodging of the F.I.R. Has been plausibly explained by the complainant with cogent reason in the F.I.R. Prima facie there are reasonable grounds to believe that at this stage the applicant/accused is guilty of the offence as alleged by the prosecution."
6. ' The applicant also filed bail application before the Sessions Judge, Kambar which was dismissed on 1-11-2005 with the following observations:-- "I have given due consideration to the matter and have examined the police papers and have also gone through the case-law cited by the learned Advocate. The perusal of the record shows that this incident had taken place in the broad hours of the day at about 8-00 a.m. And the parties being already known to each other, there was no question of mistaken identity. In this incident applicant/accused Abdul Sattar is alleged to have caused fire-arm injuries to victim Beero Khan on different parts of his body including the abdomen (flank) which is vital part of the body. Further during the investigation, the crime weapon viz. Gun has also been secured from him and the version of the complainant is fully supported by the eye-witnesses and the victim. It is further substantiated by the medical certificate. In such circumstances, it can legitimately be said that there were sufficient grounds to connect the applicant/accused with the alleged offence. M regards delay in lodging of the F.I.R. Is concerned, in the first instance, there is no inordinate delay in that the incident had taken place on 19-12-2004 while its report was lodged on the following day after getting the injured admitted and hospitalized and secondly this aspect can not be deeply examined at this stage of bail. Same can be said about the delay, if any, in the statements of the witnesses/injured. The contention of the learned Advocate that no empty was secured from the place of incident and that the applicant/accused have not repeatedly fired, have also no much weight in the given circumstances of the case. The empty cartridge would have ejected only if the barrel was opened to reload it and that not being the case here, there was no point in looking for the empty cartridge at Wardat. So far non-repetition of the fire is concerned, in my considered view the use of fire-arm straight at a person in broad hours of the day, itself was prima facie indicative of the intention. It requires no multiple shots to attract section 324, P.P.C."
7. ' The learned counsel for the applicant submits that the applicant was falsely implicated due to dispute over the land. He further submits that no empty cartridge was recovered, delay of more than 8 hours in lodging the F.I.R. Made the case doubtful. He further submits that the offence does not fall within the prohibitory clause and that the inordinate delay in conclusion of trial gives right to the accused to be released on bail.
8. ' The learned counsel for the applicant relied upon the following reported cases:--
(1) Waris v. State 2000 PCr.LJ 642.
(2) Irshad v. State 2004 PCr.LJ 1246.
(3) Syed Amanullah v. State PLD 1996 SC 241.
(4) Unreported case of Gulsher v. State in Cr.B.A. No,270 of 2005 of this Court.
9. ' On the other hand Mr. Mushtaque Ahmed Abbasi the learned Asstt.A.-G. Submits that the accused was nominated in the F.I.R. With specific role. Medical as well as ocular evidence is supporting the version of the complainant, the gun with licence was recovered from the accused/applicant. He further submits that the allegation against the accused/applicant is direct firing on Beero Khan who sustained fatal injury on the vital part of the body which disentitles him for the concession of grant of bail.
10. ' I have considered the submissions of the learned counsel for the parties and perused the record made available before me and have also perused the case laws cited by the learned counsel for the applicant. The first ground urged by the learned counsel for the applicant is that no empties were recovered. The allegation against the applicant is not repeated firing. The question of ejection of empty cartridge will only arise if the gun was reloaded for further firing. Since in this case the allegation of repeated firing is not there the non-recovery of empty cartridge in presence of ocular and medical evidence and recovery of gun is meaningless. The other ground urged by the learned counsel is the delay in lodging the F.I.R. No doubt there is some delay but the same was explained in the F.I.R. And the explanation given appears to be plausible. Some delay in lodging the F.I.R. In presence of material available on record was to be ignored. Sufficient material is available on record to connect the applicant with the commission of crime and there appears to be reasonable grounds to believe that the applicant is guilty of offence punishable with imprisonment of 10 years.
11. In bailable offences the grant of bail is a right and not favour, whereas in non-bailble offences the grant of bail is not a right but concession. Section 497, Cr.P.C. Divided non-bailable offences into two categories i.e, (i) Offices punishable with death, imprisonment of life or imprisonment for ten years and (ii) offences punishable with imprisonment for less then 10 years. In non-bailable offences falling in second category, the grant of bail is a rule and refusal an exception. In this case offence under section 324, P.P.C. Provides imprisonment for ten years and the same falls within the prohibitory clause. As far as the delay in conclusion of trial is concerned the same is no more a valid ground for grant of bail in non-bailable offence. However, inordinate delay, if not explained, amounts to abuse of process of law the same can be considered as a valid ground for grant of bail. The applicant has not produced any material in support of his contention that the delay in conclusion of trial can not be attributed to the applicant. The case laws cited by the applicant have distinguishable facts and not applicable to the present case. In the case of Waris the bail was granted on the consideration that no empties were recovered and there were contradictions in the medico-legal report and the deposition of the prosecution witnesses. In the case of Irshad the bail was granted on the consideration that eyewitnesses were examined after delay of two months eleven days and Mashirnamas of place of occurrence displayed different picture of scene describing two locations and so also the State Counsel has conceded to grant of bail. In the case of Syed Amanullah the bail was granted on the consideration that whenever reasonable doubts arises with regard to participation of accused person in the crime, the accused should not be deprived of benefit of bail. In the unreported case the consideration for grant of bail was delay of four months in recording the statement of P.Ws., no recovery, no specific role, the allegations were general in nature and that the enmity between Jatoi and Mahar Tribes. In view of above I am satisfied that there are reasonable grounds to believe that the applicant is guilty of an offence punishable with imprisonment of 10 years and is not entitled to grant of bail. However, I direct the trial Court to conclude the trial within three months. If the trial is not concluded the applicant may file fresh bail application before the trial Court. Bail application is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.