' MAQBOOL AHMED AWAN, J.--The applicant Naseer, facing trial in the Court of Assistant Sessions Judge Tharparkar at Mithi under sections 324, 114, 337-F(VI), 504, 147, 148 and 149, P.P.C., filed the bail application before the learned trial Court which was dismissed on 6-11-2008. Thereafter, applicant repeated the same and which too was dismissed by the learned Sessions Judge Tharparkar at Mithi on 28-2-2009, hence this application for grant of bail.
' Precisely the facts of the prosecution case are that on 11-8-2008 at 1300 hours, the complainant lodged the F.I.R. At Police Station Mithi, stating therein that Ismail son of Qadoo and others had attacked upon his land and committed the theft, such F.I.R. Was lodged being Crime No,42/2008 for offence under sections 382, 337-F(i), 504, 114, 147, 1,48 and 149, P.P.C., on 1-8-2008. Because of that F.I.R., Ismail and others were annoyed. On the day of occurrence i,e, 11-8-2008, the complainant, his brother Usman, grandson Asghar and Liaquat were working on their land when at about 0900 hours they saw the present applicant having rifle in his hand,
2. Sulleman with gun,
3. Nabi Bux having gun,
4. Siddique having pistol,
5. Hassan,
6. Malhar,
7. Saleh,
8. Haji Allah Jurio having guns in their hands,
9. Ibrahim,
10. Shafi,
11. Atta Muhammad,
12. Abdullah and 13. Akbar having hatchets and lathies in their hands along with 10/15 unknown persons for whom the complainant party claimed to have seen and would be identified them on seeing again, were carrying weapons in their hands.
Accused Saleh Bajeer challenged and instigated his companion that Ibrahim and others have lodged the false case against them, therefore, they would not be spared. On his instigation, the present applicant with intention to commit the murder made straight fire with his rifle upon Asghar which hit on upper side of thigh of his left leg who raised cries and fell down. It is alleged that co- accused made straight fires upon the complainant party with intention to murder. Thereafter, all the accused went away. The complainant party saw Asghar having firearm injury on his thigh and was bleeding. The complainant party then took the injured to Civil Hospital, leaving him at Hospital, the complainant came at Police Station and lodged F.I.R. As stated above.
' The police took up the investigation and after completing the same, submitted challan before the learned Lower Court who sent up the same to the Court of learned Sessions Judge, from where the case was sent to the learned Assistant Sessions Judge, Mithi for trial.
' During pendency of the trial, all the accused were granted bail. However, the bail plea of the present applicant was refused by the learned Trial Court as well as by learned Sessions Judge, hence the applicant filed the same before this Court.
' Mr. Syed Madad Ali Shah, the learned counsel for applicant has argued that applicant is innocent and on account of the dispute over the land, he along with his entire male members have been implicated by the complainant in the case in hand. He further submits that as per the F.I.R., it is alleged that at the instigation of co-accused Saleh the present applicant fired with his rifle which hit to Asghar on his thigh, the non-vital part of the body and according to learned counsel, the offence for which the applicant is charged would fall under section 337-F(VI), P.P.C., provides 7 years' punishment and that punishment would not fall within the prohibitory clause of section 497, Cr.P.C.; that all the family members of the applicant party have been roped by the complainant with ulterior motive and mala fide intention; that applicant has not repeated the fire and that if there was an intention of committing the murder, he would have repeated the same. In support of his contentions, he relied upon the following cases:---
(1) Muhammad Umer v. The State (PLD 2004 Supreme Court 477).
(2) Umar Hayat v. The State and others (2008 SCM R 1621).
(3) Muhammad Afsar v. The State (1994 SCM R 2051).
(4) Abdul Majeed and another v. The State (2009 YLR 344).
(5) Tariq Bashir v. The State (PLD 1995 SC 34).
' Mr. Abdul Aziz Memon, the learned counsel appearing for the complainant has argued that witnesses naely complainant, P.W. Muhammad Usman and one A.S.I. Have been examined and now the case is fixed on 27-5-2009 for further proceedings. He further argued that accused are avoiding to proceed with the case. He relied upon the following cases:-
(i) Muhammad Zamir v. The State (2001 PCr.LJ 935).
(2) Madad Khan v. The State (2006 PCr.LJ 1280).
(3) Yaseen v. The State (2006 PCr.LJ 371).
' Mr. Mukhtar Ahmed Khanzada, the learned counsel for the State conceded to the grant of bail, on the ground that applicant has not repeated the fire and that if there would have been intention on the part of applicant to commit murder, he would have repeated the fire. He further submits that punishment of the offence would not fall within the prohibitory clause of section 497, Cr.P.C.
' Heard and record perused.
' I have considered the arguments advanced by learned counsel appearing on behalf of the applicant, complainant and State so also perused the entire material.
' Admittedly there is enmity between the parties over the land and this fact has also been admitted by the complainant in the F.I.R. It is also an admitted position that complainant involved 25/30 persons in the F.I.R. And all accused are enjoying the concession of bail except the present applicant against whom the role of fire is attributed upon Asghar who sustained injury on thigh, the non-vital part of the body. It is also an admitted position that applicant did not repeat the fire and if there was an intention on part of applicant to commit the murder, he Would have repeated the same. No incriminating article has so far been recovered from the possession of the applicant. The case-law relied upon the learned counsel for applicant is very much identical and supports the case of applicants.
' In the case of Muhammad Umar (supra), the bail was granted to the applicant on the ground that challan has been submitted and the accused was no more required by the prosecution for any investigation.
' In case of Umar Hayat (supra), the bail was granted to the applicant in similar circumstances.
' In the case of Muhammad Afsar (supra), the bail was granted to the applicant on the ground that it was yet to be seen whether there was intention on the part of accused to commit the murder of injured, in view of injuries sustained by injured on the non-vital part of the body. Further the punishment provided was not falling within the prohibitory clause of section 497, Cr.P.C.
' In the case of Abdul Majeed (supra) the bail was granted to the applicants in the similar circumstances and in the above case it has been alleged that out of 84 persons, only two persons fired upon the complainant party and did not repeat the fire.
' In the case of Tariq Bashir (supra), the bail was granted on the ground that punishment would not fall within the prohibitory clause.
' I have also gone through the case-law relied upon by learned counsel for complainant which are not applicable to the facts and circumstances of the case in hand.
In view of the foregoing reasons and the case-law relied upon by learned counsel for the applicant and the no objection, raised by the learned counsel for State, I am of the considered view that the applicant has made out the case which B requires further inquiry as envisaged under sub-clause 2 of section 497, Cr.P.C. Resultantly, I allow this application and grant bail to the applicant on his furnishing surety in the sum of Rs.100,000 (One Lac) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
' Above are the reasons of my short order dated 22-5-2009.