1. ' NADEEM AZHAR SIDDIQI, J.- This is an application whereby the bail is sought by applicant Muhammad Bachal @ Bachal Chandio in Crime No, 184 of 2007 for an offence under sections 324, 452, 504 and 34, P.P.C.
2. ' Briefly the facts of prosecution are that on 15-6-2007 the complainant along with other inmates of house went asleep when on 16-6-2007 at about 0400 hours, they woke up on some commotion and recognized the accused namely Bachal, 2.Saifal and 3. Mirch all by caste Chandio, duly armed with guns, standing in the courtyard. It is further alleged that accused Bachal raised Hakal not to spare and abused complainant party to which Qamaruddin prevented them not to abuse and asked them as to why, they have trespassed the house. In the meantime, accused Bachal fired from his gun which hit him and he fell down on the ground. The accused party escaped the scene.
3. Thereafter it was noticed that Qamaruddin had sustained fire-arm injuries on right side of neck.
4. After receiving police letter, the injured was removed to CMC Hospital Larkana wherefrom he was referred to Agha Khan Hospital Karachi. Subsequently, while leaving the relatives with the injured, the complainant approached P.S and lodged the F.I.R. To the above effect.
5. ' After usual investigation, the police challaned the case while placing the name of present applicant in Column No,II and he was let off under section 497, Cr.P.C. And the co-accused Mirch and Saifal were shown as absconders. The learned Ilnd Civil Judge, Kharipur K.N. Shah did not agree with / the police investigation and joined the accused Bachal and later the applicant was arrested on 3-8-2007 and was sent up to face the trial.
6. ' The bail plea advanced on behalf of the present applicant before the trial Court was declined vide impugned order, dated 11-10-2007 giving rise to the present application.
7. ' I have heard learned counsel for the parties and perused the material brought on record. It is mainly contended by the learned counsel for the applicant that the applicant is innocent has been falsely involved in the background of admitted enmity. He submits that there is delay of more than 10 days in lodging of the F.I.R. Without plausible explanation while the distance between P.S and Wardat is only 17-18 K.Ms and the intervening period can easily be utilized for the false implication of present applicant. He pointed out that the 161, Cr.P.C. Statement of P.Ws. Were recorded after delay of 2 months and 28 days which has reduced its value to nil and such statements cannot be held trustworthy. He submits that nothing has been recovered from the appellant to connect him with the commission of crime therefore, during the investigation the police found him innocent and let off him under section 497(2), Cr.P.C. Learned counsel has also submitted that involvement of the present applicant in this crime on 16-6-2007 at 0400 hours is highly improbable as he was suffering to severe ailment and remained under treatment of Dr. Rafique Ahmed Shaikh at Afac Clinic w.e.f, 15-7-2007 to 16-8-2007. It was lastly contended that in previous two F.I.Rs, vide Crime Nos.90 and 92 of 2005 of P.S Rukkan registered against the relatives of complainant Farid Khan, the present applicant is complainant and coaccused Mirch has acted as mashir, therefore, they have been implicated in the present false case. On all these scores, the learned counsel submits that the case of present applicant calls for further inquiry and he is entitled to the concession of bail.
8. ' Learned State Counsel has opposed the grant of bail on the ground that the present applicant has been named in the F.I.R. And he has been attributed specific role of causing injury to P.Ws.
9. Qamaruddin which is supported by the Medical Certificate and also the P.Ws. Have supported the case of complainant.
10. ' The learned State Counsel after going through the record has submitted that no recovery has been made from the applicant as well as from the place of incident and has also confirmed the delay in recording 161, Cr.P.C. Statement of the P.Ws.
11. ' The plea for bail is the plea of alibi. The applicant contends that on the date of incident he was admitted to hospital and was under treatment of Dr. Rafiq. The police has also recorded the statements of Wajid Dogar and Dr. Rafiq who in their statements confirmed that the applicant was remained under treatment of Dr. Rafiq on 15 and 16 July, 2007. On the basis of plea of alibi the police has released the applicant under section 496, Cr.P.C. The F.I.R. Was lodged in the background of strain relations between the parties and there appears to be delay of about 10 days in lodging the F.I.R. As well as unexplained delay of about 2 months and 28 days in recording the statements of P.Ws. The plea of alibi coupled with the delay in lodging the F.I.R. And recording the statements of P.Ws. Create reasonable doubt about the involvement of the applicant. The Honourable Supreme Court in the reported case of Ajmal Khan v. Liaquat Hayat PLD 1998 SC 97 while declining the bail has held that no doubt the proposition is well settled that bail can be granted in a case of capital charge on plea of alibi if peculiar facts and circumstances of that case so justify the finding in favour of grant of bail. In this matter the doubt is created regarding participation of the applicant in the commission of crime. The Honourable Supreme Court in the case of Syed Amanullah Shah v.
12. The State PLD 1996 SC 241 has held that where doubt is created, it is better to keep accused on bail rather to keep him in jail. In the reported case of Manzoor Ahmed v. State PLD 1972 SC 81 the Honourable Supreme Court has held that bail is not to be held as punishment. It was further held in the same judgment that the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.
13. ' From the above discussion, I am satisfied that a case of further enquiry into the guilt of the applicant has been made out and I am also satisfied that there are no reasonable grounds for believing that applicant has committed a non-bailable offence.
14. ' In view of the above, this bail application is allowed. The applicant be released on bail on his furnishing solvent surety in the sum of Rs,2,50,000 and P.R bond in the like amount to the satisfaction of trial Court.
15. ' In case the applicant is found misusing the concession of bail, the trial Court is free to take action against the applicant in accordance with the law.