SHAHID HAMEED DAR, J. - Asad Mehmood, petitioner seeks bail after arrest in case F.I.R. No. 302 of 2010, dated 20.6.2010 under Section s 324, 337-A(v), 148, 149, PPC, registered at Police Station, Shahzad Town, Islamabad.
2. Precisely, the prosecution case as stated by Meharban, complainant is that he was having his own house constructed, adjacent to the house of his brother Irfan, on 20.6.2010 when accused Asad (petitioner) armed with pistol, Nadeem, Shahzad, Irshad and two un-known accused, armed with pistols and dandas, pounced upon him and thrashed him mercilessly at about 9.00 am; Asad (petitioner) and his co-accused Nadeem gave repeated blows of the butts of pistols, on his head and also caused injuries to his real brother, Irfan; the witnesses Muhammad Faruq and Tariq intervened and rescued the complainant; the motive behind the occurrence is that the accused intended to forcibly occupy the residential plot of the complainant.
3. Meharban complainant, aged 60 years was medically examined at 9.40 a.m. On 20.6.2010 vide MLC No. 1323 at Federal" Government Services Hospital, Islamabad by a Medical Officer who found three blunt weapon injuries on his head; injury No. 1 showed a depressed fracture of the skull so it was declared as Shajjah-i-Hashimah punishable under Section 337-A(v), PPC whereas the other two injuries were found simple in nature.
4. Learned counsel for the petitioner submits that the petitioner has been falsely roped in this case under a conspiracy by the complainant and the charge against him is baseless; there is no evidence with the prosecution to specifically attribute the fractural injury on the head of the complainant either to the petitioner or to his co-accused; the eye-witnesses of the occurrence namely Tariq, Irfan and Muhammad Faruq have, not supported the version Pf the complainant in their statements under Section 161, Cr.P.C. And have not burdened the petitioner with the liability of causing any injury on the head of the complainant; the petitioner's case is open to further inquiry into his guilt within the scope of Section 497(2), Cr.P.C., so he may be released on bail. Relies upon "Muhammad Aslam and another Vs. The State through A.G., Punjab and another" (1997 SCM R 251), "Muhammad Afzal Vs. The State" (NLR 2008 Criminal 157), Ali Muhammad Vs. The State" (PLD 20.09 Lah. 312) and "Jaffar and others Vs. The State" (1980 SCM R 784).
5. Learned Deputy Prosecutor General assisted by learned counsel for the complainant has vociferously opposed the grant of bail to the petitioner with the contention that the petitioner was armed with a pistol at the time of occurrence and he hurled the butt thereof on the head of the complainant and caused the fractural injury; the petitioner led to the recovery of pistol 30 bore on 29.6.2010 which is a piece of strong corroboration to the version of the complainant; the eye- witnesses including the injured PW still support the prosecution case which falls within the prohibitory clause of Section 497, Cr.P.C.; the petitioner alongwith his co-accused Nadeem is vicariously liable for the commission of the offence, alleged against him, so he may not be released on bail; lastly contends that the trial of the accused-petitioner has commenced and the case has been fixed by the learned Trial Court for recording of the prosecution evidence; the petitioner has been found involved in the occurrence by the I.O. And his name has been placed in its column No. 3 of the challan. Relies upon "State through Force Commander ANF, Rawalpindi Vs. Khalid Sharif' (2005 SCM R 1265).
6. I have heard the learned counsel for the parties and perused the record.
7. The petitioner has been bracketed when his co-accused Nadeem who too was allegedly armed with a pistol and both of them authored injuries by hurling their weapons from the wrong side, on the head of the complainant. The M.L.R. Of complainant shows three blunt weapon injuries on his head, one out of which, injury No. 1, shows a depressed fracture of the skull whereas the other two injuries have been shown by the Medical Officer to be simple, obviously falling within the definition of Shajhah-i- Khafifah, punishable under Section 337-A(i), PPC. The complainant produced three witnesses M/s. Tariq, Irfan and Muhammad Faruq before the Investigating Officer for their statements under Section 161, Cr.P.C. But Ironically, none of three has attributed any specific injury to the petitioner qua the injured-complainant and in a vague manner each one of them has alleged that all the accused mentioned in the F.I.R. Had caused injuries to the complainant and his medically un-examined brother, by means of their weapons. The statements of PWs hardly render any corroboration, in present form, to the version of the complainant. One fractural injury on the head of the complainant stands attributed to the petitioner as well as to, his co-accused and in absence of any clarifying statement, it cannot be said at this stage as to who had authored the said injury. The mystery regarding infliction of the above-said injury on the head of the complainant and the fixation of the liability thereof shall only be possible after the learned Trial Court would record the evidence of the parties during the course of the trial. It has been contended by the complainant that his brother Irfan had. Also been beaten by the accused during the occurrence but there is no medico-legal certificate, establishing the said fact as he did not offer himself to be medically examined by the Medical Officer concerned. There is no doubt that the punishment provided for an offence under Section 337-A(v), PPC catches the prohibition of Section 497, Cr.P.C., but, this fact in the attending circumstances, can hardly impede the grant of bail to the petitioner as his case clearly calls for further probe into his guilt.
8. The objection of learned counsel for the complainant qua the commencement of the trial cannot be taken into consideration at this stage for the foregoing reasons as the petitioner's case is fully covered by Section 497(2), Cr.P.C. In the identical circumstances, it has been held by the august Supreme Court of Pakistan, in case titled "Muhammad Ismail v/s. Muhammad Rafique and another"
(PLD 1989 SC 585) as under:-- 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, sub-section (2) of Section 497, Cr.P.C. Would have operation notwithstanding the afore-stated practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under sub-section (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.
Having been guided by the afore-said luminous judgments relied upon by the learned counsel for the petitioner, I accept this application and admit the. Petitioner to post-arrest bail provided he furnishes bail bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court.