'MANZOOR AHMAD MALIK, J.---Muhammad Tufail and Javed Iqbal petitioners seek bail after arrest in case F.I.R. No 943/2009 dated 24-11-2009 offences under sections 324, 336, 337-F(iii), 337-F(v), 148 and 149 P.P.C. Registered at Police Station Bhalwal, District Sargodha. Precisely allegation against the petitioners is that they while armed with different weapons along with their co- accused in prosecution of their common object assaulted the complainant party and caused injurie$ to the complainant and his companions Dr. Ahmad Hameed and Bilal Amjad.
2. Learned counsel for the petitioners in support of this petition contends that as per F.I.R. Javed Iqbal petitioner fired with his rifle which hit Bilal Amjad PW on his left leg whereas petitioner Muhammad Tufail fired with his rifle 222 bore which hit Dr. Ahmad Hameed on the finger of right hand; that another fire made by Muhammad Tufail petitioner allegedly hit the complainant; that Bilal Amjad was allegedly injured with the fire of Javed Iqbal but he has not named Javed Iqbal petitioner in his statement recorded under section 161, Code of Criminal Procedure and similarly that the other injured namely Dr. Ahmad Hameed also did not implicate Muhammad Tufail petitioner; that during the course of investigation both the petitioners were declared innocent by the Police and the findings of the Police were never challenged by the complainant side; that the injuries are on the non-vital parts of the injured; that the petitioners are behind the bars since 11-1- 2010 and no more required for the purpose of investigation.
3. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this petition on the grounds that the petitioners are nominated in the F.I.R.
With specific role; that the petitioners are responsible for causing injuries to three persons; that finger of Dr. Ahmad Hameed injured has been amputated and during the course of investigation section 336 P.P.C. Has been added; that provision of sections 148 and 149, P.P.C. Are fully attracted in the case; that charge has been framed against the petitioners and the case is fixed for recording of prosecution evidence. In support of his submissions, learned counsel has placed reliance on The State through Force Commander, Anti-Narcotics Force, Rawalpindi" versus Khalid Shard" (2006 SCM R 1265). However, the learned Deputy Prosecutor General after instructions from the Police Officer and perusal of the record states that during the investigation petitioners were innocent and further confirms that Bilal Amjad injured has not implicated Javed Iqbal petitioner and similarly Muhammad Tufail petitioner has not implicated by Dr. Ahmad Hameed injured in their statements recorded under section 161, Code of Criminal Procedure.
4. I have heard learned counsel for both the sides. Though the petitioners are nominated in the F.I.R.
With specific allegations of causing firearm injuries but the fact remains that they were found innocent during the course of investigation and nothing was recovered from them. Moreover, injured PW Bilal Amjad has not implicated the petitioner Javed Iqbal and similarly Muhammad Tufail petitioner was not implicated by Dr. Ahmad Hameed injured in his statement under section 161, Code of Criminal Procedure as confirmed by the learned DPG. Petitioners are behind the bars since 11-1-2010.
5. As far as commencement of trial is concerned, it is now well-settled principle of law that the accused can be allowed bail at any stage and mere commencement of trial is no bar to enlarge the accused on bail, if he is otherwise entitled to the same. While holding so, I am guided by the principle of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Ismail versus Muhammad Rafique and another" (PLD 1989 SC 585) wherein at page 588 it has been enunciated as under:-- "It is well-known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge. The observation of the learned Judge in the High Court with regard to prejudice, with respect, it is pointed out, would not be correct; because, the principle underlying the above-stated practice is directly relatable to the "question of prejudice".
'However, the above-stated position, notwithstanding after hearing the learned counsel we feel that this appeal merits to be dismissed. Firstly, if the merit points involved herein are determined, the very practice relied upon by the learned counsel will go against the appellant. The trial is to commence within a fortnight; hence cancellation of bail at this stage would not be proper. But in the circumstances of this case there is more vital point on account of which this appeal merits to be dismissed.
'It appears from the tenor of the impugned judgment of the High Court that the respondent's case was treated as one falling under subsection (2) of section 497 Cr.P.C. That being so, the Court had no option but to release the accused on bail. The subsection reads as follows:--
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed (a non-bailable offence), but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
'It is apparent that when the Court finds that the two essential conditions contained in section 497(2), Cr.P.C. Are satisfied the accused shall become entitled as of right to bail. In the impugned order, the learned Judge, it seems, without saying so in so many words, felt that the two conditions existed in this case-(a) that "there are not reasonable grounds for believing that the accused has committed (a) non-bailable offence; (b), that there are sufficient grounds for further inquiry into his guilt". Accordingly the accused had become entitled to be released on bail.
'The question then arises; whether, subsection (2) of section 497 Cr.P.C. Would have operation notwithstanding the aforesaid practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of section 497 Cr.P.C. The same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right".
'Case-law relied upon by the learned counsel for the petitioners is distinguishable on facts. Even otherwise each case has to be decided on the basis of its own facts and circumstances. In the circumstances case of the petitioners is one of further inquiry c within the ambit of subsection (2) of section 497, Code of Criminal Procedure. Therefore, this petition is allowed and the petitioners are admitted to bail after arrest subject to their furnishing of bail bonds in the sum of Rs, 1,00,000 (rupees one lac only) each with one surety each in the like amount to the satisfaction of learned trial Court. However, the learned trial Court is directed to make all possible efforts for conclusion of the trial of this case as early as possible and if the petitioners are found responsible for delay in the conclusion of the trial, complainant shall be at liberty to file a petition for cancellation of bail allowed to the petitioners.
6. Before parting with this order it is clarified that the observations made in this order are tentative in nature and relevant only for the disposal of this bail petition which will not influence the learned trial Court in any manner whatsoever.