. ORDER ' HABIBULLAH SHAKIR, J.---Abdul Hameed, petitioner. Through the instant petition, has sought post- arrest bail in case FIR No, 652, dated 10.8.2007 registered under sections 396/397/412/109 of the PPC read with Section 13 of the Arms Ordinance XX of 1965 at Police Station Uch Sharif, District Bahawalpur.
2. According to the contents of the FIR, at about 12:30 a.m. In the. Night on 10.8.2007, Allah Diwaya, complainant was sleeping in the street outside his house. On the barking of the dogs, he woke up and found fourteen persons armed with deadly weapons standing there. Seven out of them caught hold the complainant and the remaining entered the house and started untying his cattle. The accused persons while putting a cloth on the face of the complainant took him at a distance of 2 acres from his house. On his hue and cry, Muhammad Aamir, Muhammad Bakhsh and Allah Bakhsh rushed towards the complainant to rescue him. During the scuffle, the face of the complainant unveiled. The complainant being a neighbour identified the accused persons as Muhammad Ajmal, Ghulam Nazak, both armed-with carbines, Ameer Bakhsh, equipped. With Kalashinkov, Rasool Bakhsh alias Kala, armed with gun, Gulla. Armed with soti. Soti, Ghulam Yasin, equipped with Kalashinkov, Muhammad Akram alias Akri having a gun with him, Muhammad Iqbal alias Bali, armed with gun, Abdul Hameed, Nazak. Hussain both armed with carbine and Sadiq Hussain armed with soti. It was alleged in the FIR by the complainant that he could identify the remaining three on seeing them. When Muhammad, Aamir came near the complainant, Kala accused gave a butt blow on his head and Nazak Hussain made a straight fire from carbine on Muhammad Aamir, which hit on his belly. On hearing the fire shot, Muhammad Jalal, Mukhtiar Ahmad, Mst. Irshad Bibi wife of the complainant and other persons from nearby gather there.
Ameer Bakhsh accused fired a shot which hit Muhammad Jalal which hit on his leg; Muhammad Ajmal inflicted a butt blow on the head of Mukhtiar Ahmed; Muhammad Yasin inflicted blows on the right arm and head of the complainant and Gulla accused also gave him soti blows; Muhammad Akram inflicted gave blows with butt of his gun on right hand and ribs of Mst. Irshad Bibi whereas remaining accused started firing blindly, Due firing of the accused persons, Ghulam Yasin and Muhammad Akram alias Akri accused died at the spot. Muhammad Iqbal alias Bali looted three -buffalos of the complainant worth Rs, 1,50,000/-, however, on reaching the witnesses, he left two buffalos there and ran away while taking third one with, him. Muhammad Aamir son of the complainant also succumbed to the injuries at the spot.
3. It is contended by learned counsel for the petitioner that the petitioner is innocent and has falsely been involved in this case; that no injury or specific role has been attributed to the petitioner rather a general allegation that all the four men made firing; no alleged weapon of offence, as shown in the FIR, was recovered from the petitioner except a Soti. Furthermore, contradictions in statement of the complainant on different occasions makes the case of the petitioner as one of further inquiry. The petitioner is in jail since 18.10.2007 and that his persOn is no more required by the police for further reinvestigation. Therefore, he is entitled for grant of bail.
4. The learned Deputy Prosecutor-General assisted by the learned counsel for the complainant opposed the grant of bail to the petitioner on the grounds that earlier bail application of the petitioner bearing Crl. M. No, 1531-B-2008 was dismissed as having been withdrawn by this Court on 4.12.2008, therefore, this second application on same grounds is not competent; that the petitioner is nominated in a promptly lodged FIR; that alleged weapon of offence has been recovered from him which connects him with the commission of alleged offence. Therefore, he is not entitled for the grant of bail.
5. I have heard the arguments of the learned counsel for the parties and have gone through the record. So far as the plea raised by the learned Deputy Prosecutor General that as earlier bail application of the accused had been withdrawn, the same would be deemed to have been dismissed on merits is concerned it has been held in Wajid Ali v. The State (2009 PCrLJ 275) that in such a situation it could not be said that the case had been decided on merits.
6. It has been noticed that no injury to any of the injured or the deceased is attributed to the petitioner. It was stated in the FIR that the petitioner was armed with carbine whereas during investigation a soti was recovered from him on 28.10.2007. The alleged stolen buffalo was not recovered from the accused; rather the same was produced by the complainant himself before the police on 22.12.2007. Further, even after having made charge of general nature against the petitioner and others, the co-accused of petitioner Sadiq Hussain, Ghulam and Allah Bakhsh were declared innocent vide Zimni No, 9, dated 20.9.2007. And all this, prima facie, is not enough to connect the petitioner to the alleged offence, which state of affairs, makes case of the petitioner one of further inquiry. It has been held in Muhammad Ismail v. Muhammad Rafique & another (PLD 1989 SC 585), Niaz Ali v. The State & another (2003 YLR 163) and Muhammad Arif Hussain v. The State (1999 M LD 939) that if the case of further inquiry is made out, then the accused cannot be denied the right of bail. Bail cannot be refused merely on the ground that the offence falls within the prohibitory clause of Section 497. Cr.P.C. Furthermore, the Court seized of the matter should consider whole case on data available on record and, if any doubt arose benefit of same must be given to the accused. Similarly, the Court while considering question of bail was not to keep in view only maximum sentence of death or imprisonment for life provided under the law, but at bail stage, if reasonable ground appeared that the person was not guilty of offence with which he was being charged, such person by virtue of sub-section (2) of section 497, Cr.P.0 would be entitled to bail and prohibition contained in subsection (1) of section 497, Cr.P.C. Would not create a bar for grant of bail. The petitioner is in jail for the last one and a half year. The recovery has been effected from him and he is no more required by the police for further investigation. Although the challan was submitted in the Court on 31.10.2008 but statement of not a single witness has been recorded so far.
Therefore, there is no likelihood of early conclusion of trial. The petitioner cannot be kept in jail for an indefinite period without any apparent progress in the trial of the case, So, this petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bond in the sum of Rs, 100,000/- (One hundred thousand rupees) with one surety in the like amount to the satisfaction of learned Trial Court.