' IJAZ AHMAD CHAUDHRY, J.---Through this petition, Ibrar Hussain/ petitioner seeks post-arrest bail in case F.I.R. No,231/2008, dated 30-8-2008, registered under sections 302/34/ 148/149/109 P.P.C.
Registered with Police Station Kakrali, District Gujrat.
2. The complainant Zafar Iqbal lodged the F.I.R. Contending therein that on raising upon lalkara by the present petitioner, Usman Zafar armed with kalashnikov fired at Abdul Rauf Tariq which hit on his head who fell down. Thereafter Ibrar fired at Abdul Rauf with his .30-bore pistol which hit on his right arm (Dola).
3. It is contended by learned counsel for the petitioner that the petitioner is innocent and has been involved in this case due to mala fide of the complainant. Adds that the petitioner was present in the mosque and conducting electricity work in the mosque at the time of occurrence. Further contends that the present petitioner has been declared innocent by the police during the investigation on the plea of alibi which has been supported by as many as twenty-six persons of the vicinity who have sworn their affidavits in support of version of the petitioner that he was doing electric work in the mosque at the time when the occurrence had taken place and prays that by accepting this petition, the petitioner, may be granted bail.
4. The learned A.P.-G. Assisted by learned counsel for the complainant has vehemently opposed the prayer for grant of bail to the petitioner on the ground that the petitioner is nominated in the promptly lodged F.I.R. With a specific role for making fire on right arm (Dola) of Abdul Rauf Tariq/deceased. Further adds that previously F.I.R. No,376, dated 20-12-2009, under section 216 P.P.C. Was registered against the petitioner, who has a criminal bent of mind and he also remained an absconder and such like person does not deserve for concession of bail.
5. I have heard learned counsel for the parties as well as the learned Additional Prosecutor-General and perused the record. It has been noted that the petitioner was nominated in the F.I.R. With the allegation that he was riding the motorcyle the pillion rider of which was Usman Ghazanfar. The petitioner raised lalkara and Usman Ghazanfar with his kalashnikov made fire on Abdul Rauf Tariq hitting on his head and chest, while the petitioner, thereafter, with his pistol .30 bore fired hitting on the upper arm (Dola) of Abdul Raul Tariq/deceased. According to the post mortem report the deceased sustained three injuries. Injury No,1 is on the right side of head, which is an entry wound.
Similarly. Injury No,2 is also an entry wound on the right side of his chest while injury No,3, which is attributed to the present petitioner, is on the right upper arm without any exit. However, Injuries Nos.1 and 2 had existed on the other side. The doctor has given general opinion that all the injuries on the B person of the deceased were sufficient to cause death in an ordinary course of nature.
Injuries Nos. 1 and 2, which have been specifically attributed to Usman Ghazanfarco-accused. Even otherwise, during the investigation it has been found that the petitioner was present in the neighbouring village in the mosque and was doing electricity wiring. In support of this plea of alibi twenty-six persons of the local vicinity have sworn their affidavits and also have appeared before the Investigating Officer. Though opinion of the police is not binding upon the Courts yet it can be considered for c grant of bail to an accused. During the police investigation the petitioner was not found present at the place of occurrence D and the same is based upon the evidence collected during the investigation. Learned counsel for the petitioner has placed reliance on the case reported as Qadir Bakhsh vs. Allah Wasayo and others (2008 SCM R 182) wherein on the basis of plea of alibi taken by the petitioner, the Division Bench of Hon'ble Supreme Court was of the considered opinion that the discretion in the matter of grant of bail in favour of respondents, exercised by the High Court, did not suffer from any legal infirmity or arbitrariness. The learned counsel has further relied upon the case reported as Muhammad Jabbar vs. Shah Daraz Khan and another(2009 PCr.LJ 370) and the plea taken by the petitioner Muhammad Jabbar of alibi, being supported by the affidavits of the witnesses the Peshawar High Court had allowed him bail. The relevant portion is reproduced as under:- "6. Perusal of the record reveals that the case of the petitioner falls within the ambit of further inquiry entitling him to the concession of bail. The petitioner had from the very initial stage taken the plea of alibi, which was thoroughly investigated by the Investigating Officer who had found him innocent and thus, released him under section 169 Cr.P.C. Though such release of the petitioner was subsequently set aside by this Court in the quashment petition, but, he was not debarred from moving a fresh application under section 497 Cr.P.C. The statements of Muhammad Raheem alias Raheema recorded under sections 161 and 164, Cr.P.C. Available at page 36 of the record brings the case of the petitioner within the purview of further inquiry. Furthermore, the plea of alibi raised by the accused and duly investigated by the Investigating Agency cannot be brushed aside outrightly, while considering the prayer of bail of the petitioner. Besides, placing the petitioner in Column No, 2 of the challan is another circumstance, which can be taken into consideration for release of the accused on bail. This is also a cardinal, principle of law that even a lightest doubt, if exists in prosecution story, the benefit of the same will go in favour of the petitioner".
6. In view of above discussion and case-law referred by the learned counsel made above, the petitioner has succeeded in making out a case for further inquiry and, E therefore, this petition is allowed and he is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs,100,000 with two sureties in the like amount to the satisfaction of learned trial Court/Duty Magistrate concerned.