Maqbool Ahmad son of Manzoor Ahmad, petitioner seeks post arrest bail in case FIR No, 454/2006 dated 03.7.2006 offence under Section 324/34 PPC registered at Police Station New Multan.
2. Contends that allegation against the petitioner is that he inflicted injury on the ankle/shin of injured PW Zeeshan Ali with shot fire from his pistol; that the same was in fact in self-defence, as the injured PW/complainant party was the aggressor; that the alleged occurrence has taken place on the `Thara' of the shop of the petitioner and that civil dispute is already pending between the parties; that the injured PW wanted, by force to receive amount from their tenants who were running small businesses at the `Thara' in front of shop of the petitioner; that not enables from the locality joined the investigation and made statement before the Investigation Officer to the effect that complainant party was an aggressor; that the DSP during the course of investigation found the story put-forth by the complainant as false and opined that he personally inspected the place of occurrence and also inquired from the nearby shop keepers as well and found the version put- forth by the petitioner as true. Further submits that with out conceding, even if the occurrence is admitted as having taken place in the manners as stated by the complainant, still provision's of Section 324 PPC are pot attracted for the simple reason that fire was not repeated and the alleged injury is on non-vital part of the body; that petitioner is behind the bars for the last one month. In support of his contentions places reliance on 1996 P.Cr.L.J 544 titled Muhammad Khurshid Versus The State has read out following observations: "Locale of the injury was of much relevance to determine the intention or knowledge of the accused as envisaged by Section 324 PPC--Fire Arm injury assigned to accused was on the ankle of the victim which was a non-vital part of his body and it was not likely to result in death in usual 'course of nature, nor was so imminently dangerous as to be likely to cause death--Accused did not repeat the alleged overt act although the victim at the relevant time was at his mercy. Reasonable grounds, thus did not exist to believe that the accused was guilty of the offence charged. Accused was admitted to bail in circumstances".
Further refers to 1996 P.Cr.L.J 722 Waz'r Zaman Versus The State and 2007 YLR 2102 Muhammad Arshad alias Achoo Vs. The State to canvass that intention to kill being absent, provisions of Section 324 PPC, thus are not attracted and he having caused at the most simple injury with fire shot falls within the purview of Section 337-A(ii) PPC which provides punishment for five years, thus, the offence does not fall within the prohibitory clause of Section 497 Cr.P.C.
3. Conversely, learned counsel for the complainant while controverting the submission made by Mr. Abdul Aziz Khan Niazi, submits that this is an FIR which was lodged promptly that petitioner is named in the FIR with attribution of specific role; that medical evidence supports the ocular account; that recovery has been effected from the petitioner; that crime empty was also recovered from the spot; that petitioner was declared as guilty during the course of investigation ; Further submits that apart from the referred case law the conduct demonstrated by the petitioner also dis-entitles him from the discretionary relief; that for eleven times he applied for pre-arrest bail and absconded including twice from this Court. In support of his contention he places reliance on 2006 YLR 2923 Manzoor Ahmad Versus The State to canvass that accused named therein, was refused bail on the ground that he remained fugitive from law coupled with the fact that offence falls within the prohibitory clause. 2005 YLR 1832 titled Muhammad Munawar Versus The State was also relied upon and in the referred case, according to the learned counsel, on account of five months absconsion the petitioner therein was refused bail. 2008 SCM R 807 Munawar Nazir Vs. The State it has been observed therein that accused as a matter of right is not entitled to bail. 2002 SCM R 1370 Muhammad Waqas Versus The State. In the aforesaid case bail was refused by the Hon'ble Supreme Court of Pakistan in a case falling within the provisions of Section 337-A(ii) PPC.
Further submits that place of occurrence was not near the shop of the accused/petitioner, rather, on the contrary, it was in front of the shop of the complainant. Learned counsel while admitting the pendency of civil dispute between the parties, submits that this argument of learned counsel for the petitioner is of no avail; that actually the occurrence by the petitioner stands admitted although with certain explanation, which otherwise are against the record; that petitioner remained fugitive from law for about two years.
4. Learned Deputy Prosecutor General submits that main ground which found favour with the learned ASJ in refusing the bail to the petitioner was that he played hide and seak with the Court and remained fugitive from law; that he is named in the FIR and specific role has been attributed to him. He supported the impugned order.
5. In rebuttal, Mr. Abdul Aziz Khan Niazi learned counsel for the petitioner on the strength of law laid down in case 2007 YLR 2102 Khurshid Vs. The State and 2001 SCMR page 322 Malik Mukhtar Awan Versus The State submits that petitioner is entitled to the grant of post arrest bail.
6. Arguments heard. Record perused.
7. The main thrust of arguments of learned counsel for the complainant as well as the learned Deputy Prosecutor. General which also found favour with the learned Additional Sessions Judge while refusing bail to the petitioner, was that the petitioner remained fugitive from law. On this point, it is well settled law that this ground by itself is not sufficient to refuse bail to an accused nor in a criminal case conviction can be based thereon. The fugitive from law/absconder, of course looses some of the valuable rights, however, while refusing bail the material available on the record has to be looked into. I may further observe that mere absconsion is not proof of guilt of a person for the simple reason that in our society law abiding citizens and respectable persons, also may avoid, with a fear of humiliation from reappearing before the Police. So far as the ground urged by learned ASJ to the effect that he played hide and seek with the Court by submitting repeated applications, I may observe that there is nothing on the record that any `kind of action was taken against the petitioner or the surety under Section 514 Cr.P.0 which empowers the Court to forfeit personal as well as surety bonds and impose penalty equivalent to the amount mentioned in the bonds.
8. Adverting to the merits of the case, no doubt the petitioner is named in the FIR with specific injury on the ankle/shin to the injured PW but for the fact that the same was not repeated, the question of applicability of provisions of Section 324 PPC calls for further inquiry which can only be determined during course of trial after recording evidence. Further-more, which of the party was aggressor, in view of peculiar circumstances of the case that, too, can only be determined during trial. Admittedly civil litigation is pending between the parties.
9. For the foregoing reasons, I am of the view that petitioner has made out a case of further inquiry within the ambit of provisions of Section 497 Cr.P.C. Resultantly, this petition is allowed: The petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- (One lac) with one surety in the like amount to the satisfaction of learned trial Court.
10. With these observations, this petition stands disposed of.