' M. BILAL KHAN, J.---Mujahid alias Billa son of Bashir Ahmad seeks his post-arrest bail in case F.I.R.
No, 76/2003 dated 8-6-2003 registered at Police Station Lassar Kalan, District Narowal for offences under sections 148, 324, 337-F (iii), 427, 149, P.P.C.
2. The allegation in the F.I.R. Registered at the instance of Muhammad Yousaf son of Sawan was that the petitioner along with his co-accused Muhammad Shahid son of Nazir Ahmad, Bashir Ahmad and five unknown persons armed with firearms attacked the complainant party. Shahid co-accused is stated to have fired at the complainant hitting him on the right side of the chest whereas the attribution against the petitioner was that he fired with his fire-arm which hit the complainant on the left calf, thereafter the accused persons are stated to have indulged in indiscriminate aerial firing.
3. The petitioner was arrested in this case on 21-7-2003 and is in custody ever since. This is his second bail application as earlier petition bearing Criminal Miscellaneous No,5729-B of 2003 had been withdrawn on 22-10-2003.
4. I have heard Ch. Fawad Hussain the learned counsel for the petitioner as also Mr. Muhammad Yaqoob Qureshi, the learned counsel for the State and have also gone through the record brought by Muhammad Ilyas A.S-I.
5. After hearing the learned counsel it has been noticed that the petitioner is in custody for the last more than ten months and the trial has not even commenced. The reason for this delay as explained in the order of the learned Addl. Sessions Judge is that there is no Presiding Officer available to hold the trial. The learned counsel for the petitioner in support of his claim has relied on, "Muhammad Jahangir Badar v. The State and others (PLD 2003 SC 525), Liaquat Shah v. The State (2001 PCr.LJ 1723 (Lahore) and Nisar v. The State, (2004 PCr.LJ 555 (Lahore). In the case of Muhammad Jahangir Badar v. The State and others, the Hon' ble Supreme Court held that an inordinate delay in the prosecution case if not explained could be considered a ground for bailing out the accused person depending on the nature and circumstances on account of which delay had been caused. In another case titled, Liaquat Shah v. The State supra, this Court granted bail to an accused who had allegedly fired at the complainant hitting her elbow and knee of her right leg.
The bail was granted after it had been observed that the injury suffered by the victim attracted section 337-F -(ii) (iv), P.P.C. Which carried a maximum punishment of 5 years' and the case did not fall within the prohibitory clause of section 497, Cr.P.C. Similarly in the case of Nisar v. The State mentioned hereinabove, bail was granted to the petitioner as the injury was located on the front of middle of right thigh of the injured with corresponding exit on the back of middle of the right thigh.
In this case too, .30 bore pistol had been used and bail was allowed by this Court on the ground that the petitioner had spent four months in captivity without trial and that bail could not be refused by way of puftishment. It has also been noticed that the injury attributed to the petitioner is on the non-vital part of the victim and as such his common intention with his co-accused at this stage in my opinion needs further probe within the c meanings of subsection (2) of section 497, Cr.P.C. The petitioner is in captivity since 21-7-2003 and the delay which has occasioned in commencement of the trial can obviously not be attributed to him. The learned counsel for the petitioner also attempted to argue that there were serious discrepancies between the ocular account and the Medico-legal report. However, since I have held the petitioner's case to be one of further inquiry without adverting to the Medico-legal report, therefore, I would not like to comment upon the same lest it may prejudice the case of the prosecution.
6. Accordingly this petition is allowed and the petitioner is admitted to bail in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the learned trial Court.
7. The observation made hereinabove are tentative in nature and shall not affect the course of trial in any manner.