' SYED SHAFQAT ALI SHAH MASOOMI, J.---This bail application is directed against the order, dated 18-2-2009, passed by the learned Additional Sessions Judge, Mehar, in criminal bail application filed in Sessions Case No,245 of 2007, for allegedly having committed offence punishable under sections 324, 337-F(v), 147, 148, 149, 504, P.P.C. Being Crime No,108 of 2007, registered with Police Station Mehar.
2. Brief facts of the prosecution case, as narrated by complainant in the F.I.R. Are that he along with his brother Mashooque and nephew Aijaz Ali were working in Survey No,301, Deh Umed Dero, when at about 8-30 a.m. They saw and identified Badaruddin armed with rifle, Nooruddin, Mohammad Alam armed with DBBL gun, Dawood armed with gun came on Survey No,301. On coming accused Badaruddin asked that you are not restraining yourself from registering cases. Saying so, accused Badaruddin fired with his rifle at Mashooque with intention to commit his murder which hit him and other accused also fired with their respective guns with intention to commit their murder, but the complainant party fell in the watercourse and hence they did not receive the same. On fire-arm reports and cries the villages came running and accused person on seeing them went away.
Thereafter complainant took his injured brother to Police Station and for treatment obtained letter from Police Station and then took his brother to hospital and leaving him there, the complainant went to police station and lodged F.I.R.
3. Learned counsel for the application argued the matter that the F.I.R. Has been lodged without explanation of inordinate delay of about ten hours, There is conflict in medical as well as ocular testimony inasmuch as the dimension of the injuries suggest that the injury is caused with pellet not with the rifle bullet. The availability of multiple metallic density in injury suggest that pallets are still in the injury. He further submitted that the co-accused have already been granted bail before arrest. The learned counsel further argued that it is admitted in the F.I.R. That there is admitted enmity over the landed property between the complainant and the applicant and such suits are also pending in the Courts of law. In the existing circumstances the false implication of applicant cannot be ruled out. The complainant has falsely implicated the applicant in the present case.
4. On the other hand learned Advocate for the complainant and learned State counsel vehemently opposed the bail application and said that the bail before arrest application has already been rejected by the trial Court and the High Court.
5. Mr. Surhyo, learned Advocate for complainant contended that name of the applicant transpires in the F.I.R. And it is clearly mentioned that the applicant was armed with rifle and fired upon complainant's brother Mashooque Ali with rifle. He further argued that applicant also fired at the complainant party with intention to commit murder. Learned counsel for complainant cited case- law reported in 2005 PCr.LJ 654, 2005 PCr.LJ 1797 and 1995 PCr.LJ 1878. The case-laws cited by learned counsel for the complainant are distinguishable to the facts of the present case.
6. In fact earlier bail application was moved by the applicant before this Court, but it is not mentioned in the bail application, however, the learned counsel for the applicant has filed copy of order, dated 14-9-2007, passed in Criminal Bail Application No,351 of 2007, by this Court dismissing bail before arrest application of applicant by short order that specific role has been assigned to the applicant the bail before arrest is rejected as criterion for grant of bail before arrest is distinct than the grant of bail after arrest. He has also produced copy of order, dated 4-2-2008, of Hon'ble Supreme Court of Pakistan, whereby applicant was admitted to interim pre-arrest bail in Criminal Petition No,101-K of 2007, and the applicant had furnished surety; and by this order the Hon'ble Supreme Court also remanded the case to this Court in respect of granting the bail before arrest, which was declined by this Court vide order, dated 8-9-2008; while declining bail before arrest, this Court in the last made observations that "at this stage the applicant is not entitled for concession of bail, whatever, he has discussed be agitated in the application for bail after arrest". Therefore, the contention raised by the learned counsel for complainant is not correct that bail before arrest was decided on merits bail after arrest cannot be heard. In fact the criteria for grant of bail before arrest is distinct than the grant of bail after arrest. Thereafter bail application was moved again to the Hon'ble Supreme Court, vide Criminal Petition No, 75-K of 2008, however, on the date of hearing applicant did not appear there, hence it was dismissed in non-prosecution, vide order, dated 20-11- 2008. Thereafter the applicant surrendered himself before learned trial Court i.e, Additional Sessions Judge, Mehar, at the mercy of the trial Court.
7. From the perusal of case papers, it reveals that accused Badaruddin armed with rifle and co- accused Nooruddin, Mohammad Alam armed with DBBL gun and accused Dawood armed with gun fired at the complainant party present applicant has been assigned role of A firing on the leg of P.W. Mashooque brother of the complainant, but F.I.R. Is silent, whether present applicant has repeated the fire. Whereas the complainant and his injured brother was clearly at their mercy.
Prima facie there appears no intention on the part of the applicant to cause death or Qatl-e-Amd either of the complainant or his brother. There is only one injury on the person of injured Mashooque Ali, which too is on non-vital part of his body, it also prima facie shows lack of intention of accused to cause Qatl-e-Amd. Question of applicability of section 324, P.P.C. Is still to be determined at the trial after examining the prosecution witnesses.
8. There is ten hours delay in lodging of the F.I.R., which has not been plausibly explained by the complainant. In fact there is conflict in between medical as well as ocular testimony, inasmuch the dimension of the injuries suggests that the injury is caused with pallets while F.I.R. Discloses that the injured had received bullet injury; and the availability of multiple metallic density in injury suggest that pallets are still in the injury. The injury is entrance and exist wound, which under the medical terminology shows that there should be no substances available in the injury. Record reveals that the medical officer has been examined by the learned trial Court, who has deposed that he found two injuries on the person of injured i.e, (1) Fire-arm punctured type of wound 1/2 c.m. In diameter each four in number into muscle deep on right lower leg at mid posteriorly (wound of entrance), and (2); Fire-arm lacerated wound 12 c.m. x 1 c.m. Into bone visible on right lower leg at mid anteriorly (wound of exit of injury No,1); he has further deposed that the injuries were caused by fire-arm and the duration thereof was about 1 to 2 hours,
9. The case-laws referred by the learned counsel for the applicant, are very much applicable to the case in hand.
' In the case of Mohammad Afsar v. The State (1994 SCM R 2051), bail was granted to accused when the gun injury received by the victim was on ankle which was not on the vital part of the body besides it was found to be simple one and it was yet to be seen if the accused intended to kill the victim.
' In case of Shaukat Hayat and others v. The State (1997 PCr.LJ 524), accused was admitted to bail, when accused had allegedly fired at the witness hitting him on his right leg; injury sustained by the witness was a single pellet injury which was "Ghayr Jaifah Mutalahimah", entailing a maximum sentence of three years and the role played by the accused did not bring his case within the prohibitory clause of section 497(1), Cr.P.C.
' In the case of Asghar Ali v. The State (1997 PCr.LJ 1306), bail was granted to accused when injured witnesses had suffered nine pellet injuries on his legs and thighs as a result of two shots fired by the accused and co-accused from a close range and accused had neither repeated the fires and the injuries sustained by the injured witnesses were not located on any vital part of his body; accused apparently, did not intend to cause the death of the said witnesses and applicability of section 324, P.P.C. Required further inquiry.
' In the case of Aurangzeb and 4 others v. The State (1990 SCM R 1050), when prosecution version was not supported by medical evidence, the accused were admitted to bail.
' In the case of Noor-ur-Rehman v. The State (2000 PCr.LJ 1603), accused was held entitled to bail when ocular and medical with regard to wound on person of injured witnesses was in conflict with each other and enmity between the parties existed over matrimonial dispute.
' In case of Niaz Ahmed v. The State (2000 SCMR 1235), bail was granted to accused on the ground that only injury had been attributed on the head of the injured by the accused and it was only skin deep with Sota as per medical evidence; same would not prohibit Court of law to consider his release on bail.
' In case of Ghulam Abbas v. The State (1996 SCM R 978), the accused was admitted to bail, although the complainant claimed to have been hit by the shots fired by the accused, yet from the contents of the F.I.R. It was difficult to distinguish the case of accused from that of four co-accused already enlarged on bail.
' In case of Syed Abdul Baqi Shah v. The State (1997 SCM R 32), accused was released on bail, while observing that tentative assessm ent of ocular and medical evidence disclosed a conflict between the two, benefit of which could be given to accused at bail stage.
10. The alleged rifle has not been recovered from the applicant. That the co-accused namely, Nooruddin and Dawood, who were allegedly armed with guns have already been granted bail before arrest. It has been admitted by the complainant that there is dispute between the parties in respect of landed property and such civil suits are also pending. Medical evidence disclosed conflict with the ocular evidence; applicant has not repeated the fire at P.W. Mashooque Ali, whereas he was empty-handed and at the mercy of the accused, which shows that the applicant had no intention to kill him. Final challan of the case has already been submitted and the applicant is no more required for further investigation. In the above circumstances, the applicant has been able to make out a case of grant of bail, therefore, by a short order, dated 3-4-2009, he was granted bail in the sum of Rs,200,000 and P.R. Bond in the like amount to the satisfaction of trial Court and these are the reasons for the same. However, the learned trial Court is directed to conclude the trial within three months without fail.
11. The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free to appraise the evidence strictly according to merits of the case.