1. SARMAD JALAL OSMANY, J.---After rejection of his bail application by the learned trial Court, applicant Fateh Muhammad has filed this bail application.
2. The case of the prosecution in nutshell is that on the fateful night applicant caused firearm injury to P.W. Liaquat apart from having raised lalkara due to dispute over water rotation. During the incident, it is alleged that one person namely Muhammad Shafiq lost his life at the hands of co- accused Ali Sher who was armed with gun and had fired upon him. Co-accused Ashique Hussain and Mubarak Ali are shown to be armed with hatchets and alleged to have caused injuries to Liaquat. However, they have been granted bail as their case was found distinguishable because both of them are alleged to have caused injuries by hatchet to injured Liaquat but according to medical certificate there is only one injury with sharp cutting weapon on the person of the said injured.
3. Mr. Salahuddin Panhwar learned counsel for the applicant has prayed for bail on various grounds including the rule of consistency, counter versions and further inquiry. He has further argued that concept of vicarious liability shall not be taken into consideration at this stage as in view of the settled law it is to be taken care of at the time of trial. In support of his contentions learned counsel has referred to 2000 SCM R 1854 where the accused who had caused injury with soti was granted bail, similarly he has referred to the case reported in 1996 SCM R 1693 where the accused armed with knife was granted bail and on the point of counter version learned counsel has referred to 1997 SCM R 251 where the honourable Supreme Court had declined to cancel the bail, granted by the High. Court. In another case reported in 1999 SCM R 1320 accused had not caused any injury to the deceased and he was granted bail. Again as per law laid down in 1972 SCM R 682, the honourable Supreme Court had declined to cancel the bail granted on the ground of counter version, by the High Court. Learned counsel has also referred to 1996 SCM R 1845 and 2003 PCr.LJ 862 on the point of counter version.
4. Learned counsel has also argued that injury on the person of Liaquat shall fall under section 337- A(ii), P.P.C., which is punishable with imprisonment for 5 years only and does not fall within the prohibitory clause of section 497, Cr.P.C. hence the applicant is entitled for bail.
5. Mr. Ansari learned State counsel has opposed to the grant of bail and argued that specific role of raising lalkara and thereafter himself firing has been attributed to the applicant. His case is quite distinguishable from that of co-accused Mubarak Ali who was granted bail by the trial Court and Ashique Hussain who was granted bail by this Court, hence rule of consistency is not applicable.
6. Mr. Javed Chaudhry learned counsel for the complainant has also vehemently opposed the grant of bail and argued that in view of the material collected by the police during the investigation, there are no reasonable grounds to believe that applicant has not committed the offence punishable with death or imprisonment for life or 10 years as prima facie offence also falls under section 324, P.P.C. and the person causing injury in such circumstances is to be punished in addition to the punishment provided under section 324, P.P.C. In support of his contention learned counsel has relied upon 2000 PCr.LJ 1167 to show that rule for grant of bail in a case of counter version is not absolute. Learned counsel has also argued that even otherwise the alleged counter version was found to be false by the police during investigation and the case was disposed of as false in "B" Class. He has also referred to Supreme Court judgment reported in NLR 1997 Cr. 298.
7. I have given due consideration to the arguments of learned counsel for the applicant, learned State counsel and learned counsel for the complainant.
8. Indeed there appears to be a counter version but the said F.I.R. is found to have been lodged after much delay i,e, 14 hours of the incident as such its sanctity has become highly doubtful more particularly in view of the report of Investigating Agency. Furthermore the act allegedly committed by the applicant prima facie leads to his involvement in the crime, and it will not be appropriate to hold at this stage under the circumstances, that the applicant is not vicariously liable. The parties are neighbours and known to each other therefore any mistake in identification also cannot be taken into consideration. I find that for the time being there is no case for grant of bail, however, applicant may repeat his bail application at a later stage after some progress is made in the case.
9. At this stage learned counsel for the applicant points out that the Court of learned 1st Additional Sessions Judge is lying vacant after the transfer of the learned Presiding Officer. Messrs Javed Chaudhry and Anwar Ansari have no objection if the case along with its counter case is transferred from that Court to the Court of learned Sessions Judge Mirpurkhas, either to try himself or to assign to any other Additional Sessions Judge. Mr. Salahuddin Panhwar has also no objection to this proposal.
10. Resultantly, this bail application is rejected with the observations made above.