Ghulam Qasim, accused/petitioner, after the rejection of his applications for bail by the learned Judicial Magistrate-III and learned Additional Sessions Judge-IV D.I.Khan vide their orders dated 15/3/2008 and 1/4/2008 respectively in case FIR No, 18 dated 7.2.2008 under Sections 302/324/34 PPC of police station Paroa, has now come up to this Court through the application, in hand for the same relief.
2. According to the allegations contained in the FIR lodged by the complainant Jamil Akhtar, accused Mohammad Ramzan and Ghulam Qasim, sons of Mohammad Bakhsh armed with pistols, Abdur Rahman son of Mohammad Ramzan armed with a .12 bbre shotgun and Azam son of Qazim armed with an axe, co-villagers, had left water towards the house of the complainant party due to which the complainant, his brothers Hameedullah and Azhar had come out of their house and asked the accused to stop it because of damaging their house. Accused Mohammad Ramzan armed with pistol fired at Hameedullah with which he was hit while Ghulam Qasim (accused/petitioner) fired at the complainant but he escaped unhurt and the accused Azam and Abdur Rahman remained standing on the spot. The injured Hameedullah while on way to the hospital for treatment breathed his last and succumbed to the injuries.
3. It was argued by the learned counsel for the petitioner that the accused/petitioner is charged for ineffective firing at the complainant and effective role at the deceased has been assigned to his brother co-accused Mohammad Ramzan, who is still fugitive from law, that no empty has been recovered from the place assigned to the petitioner in the site-plan and that the petitioner is charged being the real brother of the principal accused. He further argued that the: learned Additional Sessions Judge has released the co-accused Abdur Rehman and Azam Khan on the ground that, although they were present on the spot but no overt-act has been attributed to them and the present petitioner was refused the concession of bail. So it was argued that on the principle of consistency, the petitioner is entitled to the concession of bail. Reliance in this respect was placed on the cases reported as Faraz Akram Vs. The State (1999 S.C.M.R. 1360), Muhammad Vs. The State (1998 S.C.M.R. 454), Mohammad Shafique Vs. Said Rehman and two others (PLJ 1995 (Criminal Cases, Peshawar 125, (Shaukat Vs. The State) (PLJ 1996 Cr.C. (Lahore) 403), Atta Mohammad etc. Vs. The State (N.L.R 1997 (Criminal) 417).
4. In reply, the learned Deputy Advocate General opposed the grant of bail to the petitioner on the ground that since he was duly armed at the time of occurrence and has fired at the complainant, therefore, he is reasonably linked with the occurrence and is not entitled to the concession of bail.
In support of his contentions, reliance was placed on the judgment reported as PLD 1996 Lahore 126.
5. The learned counsel for the complainant, namely Mohammad Yousuf Khan Advocate, submitted that although the accused/petitioner has been charged for ineffective firing, but in view of the changed, situation in Section 324 PPC, an attempt on the life of the complainant is independently punishable, and if hurt is caused, then separate punishment is provided for the same. It was also submitted that even if a person is charged for ineffective firing, that entails punishment to ten years and he will not be entitled to the concession of bail. Reliance was placed on the judgments reported as Muhammad Sarwar and others Vs. The State (1998 SD 32), Suleman Khan etc. Buner Khan etc. (NLR 2003 Criminal 1161) and Ahmed Hussain alias AMI and others Vs. The State and others (PLD 2008 Supreme Court 110).
5. I have anxiously considered the arguments advanced dt the bar and thoroughly examined record of the case.
6. Admittedly, the accused/petitioner is directly nominated in the FIR, but for ineffective firing and no empty has been recovered from the point, assigned to him in the site-plan. From the available facts and circumstances of the case, prima facie, the case falls within the ambit of further inquiry entitling him to the concession of bail. However, these assessment are tentative in nature for the purposes of bail only and shall not prejudice case of either party at trial.
7. Consequently, this application is accepted and the accused/petitioner is directed to be released on bail provided he furnishes bail bond in the sum of two lacs with two sureties each in the like amount to the satisfaction of lllaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
Above are the reasons for my short order of even date.