'CH. IFTIKHAR HUSSAIN, J.---Petitioner Faisal Ahmed through the instant petition has prayed for after arrest bail in case F.I.R. No,438 registered under section 324 read with section 34 P.P.C. With Police Station City Muridke, District Sheikhupura on 15-8-2007.
2. The facts of the case were recorded on 21-10-2008, on the similar petition bearing Crim. Misc.
No,7879-B of 2008 of the petitioner's co-accused Muhammad Bilal. I, therefore, avoid to repeat the same here.
3. It has been contended on his behalf that though he is named in the F.I.R. But no specific injury to injured Muhammad Jamil alias Sayen Badal has been attributed to him and it is while noticeable that he (injured) sustained only one injury during the alleged incident; that such an injury according to the F.I.R. Is ascribed to him and his co-accused Muhammad Bilal, while on the said date i.e, 21-10-2008, it has been held by his Lordship Khurshid Anwar Bhinder, J. (as he then was) on the similar petition of his said co-accused Muhammad Bilal that there is general allegation against the accused persons and about which it is not clear as to which fire shot had hit Muhammad Jameel and injured him and the benefit of such observation is equally available to him; that it has also been observed by his Lordship that there is unexplained delay of two days in lodging the F.I.R.
And the possibility of the deliberations in the matter cannot be ruled out; that this is arother aspect equally beneficial to him in this case as regards the question of bail in view of the rule of consistency; and that he is behind the bars since 27-10-2007, and this period now comes to two years and about three months while the position of his trial is that so far not a single P.W. Has been examined in the case and so, he is suffering detention unnecessarily for a long time.
4. Converse to that the learned. DPG assisted by the learned counsel for the complainant has opposed the petition on the ground that he is very much named in the. F.I.R. That although in the F.I.R. The fire shot, which hit the injured has not specifically been ascribed to him but this has been so in the statement under section 161 Cr.P.C. Of the said injured recorded on 6-9-2007 and so, he is fully connected with the crime alleged; that at such a stage only tentative assessment of the material available on the record is to be made and he, so, is sufficiently linked with the crime and, thus, is not entitled to any indulgence by this Court; and that the delay in trial per se is no ground for bail and in fact the delay in the trial has been occasioned by his own side despite the fact that the P.Ws. Had been attending the Court almost on every date but he is reluctant to get their evidence recorded and so, he is not entitled to such relief. The learned counsel for the complainant has submitted that the issuance of direction for expeditious conclusion of the trial with a specified period will meet the ends of justice.
5. I have carefully considered the submission made on his behalf and record available gone into.
6. As regards his role in the First Information Report brought by the injured's brother Shakeel Ahmad is like this:-- {{URDU TEXT}} The above position shows that according to the F.I.R. Both the accused nominated therein have simultaneously opened fire on the injured. They according to the same (F.I.R.) were armed with carbine and pump action respectively.
7. This shows that the fire, which hit the injured, has not at all been specifically ascribed to any one of them.
8. As said co-accused Muhammad Bilal had moved for similar relief and his such application being Criminal Miscellaneous No,7879-B of 2008 came up for hearing on 21-10-2008, before his Lordship Khurshid Anwar Bhinder, J. [as he then was], who has been pleased to extend him such relief with the following observations:--- "The petitioner is no doubt nominated in the F.I.R. But I am afraid no specific role has been attributed to him. There are general allegations levelled against the accused persons and about which it is not clear as to which fire shot hit Muhammad Jameel and injured him. There is an unexplained delay of two days in lodging of the therefore, possibility of deliberations cannot be ruled out".
9. The above para amply shows that his Lordship has been influenced by similar position as indicated above that there is general allegation against the accused persons named in the According to him, it is not clear that whose fire shot had hit Muhammad Jameel injured, Ms lordship with the same has also mentioned that there is an unexplained delay of two days in lodging the F.I.R. And the possibility of deliberations in the matter cannot be ruled out. This was perhaps the main factor, which has weighed with his Lordship in observing that he (Muhammad Bilal) is entitled to such relief.
10. I may mention here that it has also been mentioned in the order of his Lordship that during the investigation it has been found that the said co-accused was empty handed at the time of occurrence and no recovery was effected from him. The learned DPG and the complainant's side has made effort to distinguish between his case and that of said co-accused by saying that the recovery of the crime weapon pump action was effected from him and while no weapon from his said co-accused. This in my view has no such distinctive feature on the basis of such relief prayed for may be declined to him (petitioner). It is because of the fact that as per the observation of his Lordship, it is not clear that as to whose fire shot had hit Muhammad Jameel and injured him. This observation is very much significant and carries with it some scope of probe or further inquiry into such fact and such an exercise is possible only at trial. I have least the hesitation to say here that the said observation is equally beneficial to him as has been to his said co-accused.
11. I am afraid that declaring of said co-accused by the I.O. Being empty handed at the relevant time is another factor, which recoils in some way on the veracity of the prosecution version, as contained in the F.I.R. I here do not want to dilate much on this aspect of the matter, lest it may not be prejudicial to any of the parties at trial. However, suffice it would be to say here that such position is also beneficial to the accused's side and rather than the prosecution.
12. Here it is also worth mentioning that this leaves room for doubt in the version in the F.I.R. As regards the role of accused in as much as that Muhammad Bilal was shown to be armed with carbine, while according to opinion of the Investigating Officer he was empty handed at that time.
He if, was empty handed, then there was no question of his having fired at the injured. This thing carries with it some sort of element of doubt as regards the allegation against both the accused persons. It is well settled proposition in the criminal administration of justice that the benefit of doubt, even at bail stage, is to be given to accused. I am very much clear in my mind that his case as regards the merits is not much distinguishable from his co-accused, who has been extended such relief.
13. As regards the statement of injured Muhammad Jameel alias Badal Sain attributing fire shot to him, it was statedly after more than twenty days of the alleged incident. It while has not been shown that he, if during such period either has remained unconscious or not fit to make statement.
So, his such belated statement is open to serious question to be gone into at trial.
14. In such circumstances, when there is scope of further inquiry into his guilt, his case, thus, is covered within the mischief of subsection (2) of section 497 Cr.P.C.
15. He is stated to be behind the bars1 for the last two years and about three months. It but is admitted position that so far not a single P.W. Has been examined in their case. In the case of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585, their Lordships have expressed the view that when case of an accused may, otherwise be found for bail and covered subsection 2 of Section 497, Cr.P.C. Then he becomes entitled to bail as of right irrespective of the fact that the trial has commenced as it is a matter of practice.
16. I, therefore, find that he has made out a case for bail. I, thus, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs,50,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of the learned trial court.
17. However, it is clarified here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.
18. I have also noticed with grave concern that he is behind the bars for two years and about three months and statedly not a single P.W. Has been recorded in their case so far despite the fact that the charge stood framed against them.
19. It is needless to mention here that speedy trial is right of an accused, which cannot be denied to him without a just and due cause. I, therefore, direct the learned trial court to expedite their trial as much as is possible but preferably within a period of four months from the date of receipt of this order by it, under intimation to D.R. (Judi) of this Court.