' MUHAMMAD ALI MAZHAR, j.---1 & 2 Dismissed as infructuous.
3. Granted subject to all just exceptions.
4. The applicant has applied to bail in Crime No,33 of 2011 lodged at Police Station A-Section, Shaheed Benazirabad under section 324, 148, 149, 504, P.P.C.
' The complainant Ghulam Nabi has alleged in the F.I.R. As under:-- "Complaint is that I reside at the above mentioned address. On 6-2-2011 the murder of Jhando Mari was committed near 68 Mori. Such case bearing Crime No,6 of 2011 was registered at Police Station Jam Sahib, in which our caste fellow accused namely Beero son of Muhammad Saleh Mari and Ghulam Mustafa alias Balloo son of Rehmatullah Mari were arrested. Today they had come on the date of hearing in Court at Nawabshah and for meeting them, I and my brother Naveed aged about 30 years and other relatives every one namely Manzoor Ahmed son of Mevo Mari resident of Village Laiq Mari near Sakrand Sugar Mill aged about 50 years, Nasrullah son of Khan Muhammad Mari resident of Village Kazi Qadir Bux aged about 20 years, Khuda Bux son of Mevo Mari resident of Village Laiq Mari together went where after meeting him we all together were coming from backside road of Civil Hospital Nawabshah and were going towards city and when at about 2-00 p.m. Reached near Gate of Apwa Ladies Club on road meanwhile one Green Color Corolla Car without number plate arrived there in which our caste fellows namely Jokhio son of Budho Mari resident of City Daur having pistol in his hand,
2. Karimdad son of Shehzad Mari resident of Daur having rifle like Kalashnikov in his hand,
3. Shahnawaz son of not known resident of Daur having pistol in his hand,
4. Noor Nabi son of Jhando Mari resident of Daur having pistol in his hand and one unknown person having pistol who was clearly seen by us and can be identified if seen again got down from the vehicle and rioting and abusing said that we are their enemies and will murder us and while saying that all accused persons with their respective weapons made straight fires upon us with intention to commit murder. The fire arms hit my brother Nourez Mari and relatives Manzoor Ahmed Mari and Nasrullah Mari who fell down on the floor while crying. We raised cries of murder and our relatives coming behind us namely Hyder son of Ramzan Mari resident of village Karam Ali Jamali and friend Ali Gohar son of Behram Bugti resident of Shahpur Chakar and other inhabitants of locality raised cries, the culprits went away along with their weapons in their Car.
Thereafter we saw the injured persons and found that my brother Nourez has sustained fire arm injury on right side of knee and one fire arm injury on left arm muscle and blood was oozing and Manzoor Ahmed Mari has sustained injury on his right thigh and across the hip and it was bleeding and on the right side of eye and on the nose there scratches and blood was oozing and Nasrullah Mari had sustained one injury on his left buttock and was bleeding. Thereafter, we took the above injured with the help of above witnesses to P.M.C. Hospital Nawabshah and leaving them for treatment at Hospital being present at P.S now I make complaint that above named accused persons with common intention with intention to commit murder have injured my brother Nourez and relatives namely Manzoor Ahmed Mari and Nasrullah Mari by firing Investigation be done."
' The learned counsel for applicant argued that just before 20 days of lodging of this F.I.R., the cousin of the accused Muhammad Iqbal lodged an. F.I.R. Bearing No,6/2011 under section 302/34, P.P.C. Against the complainant party for committing the murder of Deedar Khan alias Jhando at Police Station Jam Datar District Shaheed Benazirabad He further argued that present incident was allegedly witnessed by Hyder son of Ramzan and Ali Gohar son of Behram but in their statements recorded under section 161, Cr.P.C., both the witnesses have simply stated that they know about the incident but they are not aware whether, the present applicant has committed the offence or not.
Learned counsel further argued, that two other accused namely Karimdad and Shahnawaz have been released under section 497, Cr.P.C. By the Police and their names have been placed in Column No,2 of the challan while the same role was attributed to the said accused also but they have been placed in Column No,2 and released by the police against whom the same set of evidence was alleged. He further argued that though the complainant party alleged in the F.I.R.
That all accused made straight fires on the complainant collectively but no empties were found from the place of incident which fact is apparent from the mashirnama prepared at the place of incident. He further averred that alleged injuries were caused on thigh and knee of the injured persons Nourez, Manzoor and. Nasrullah. He further argued that all the injuries mentioned in the medical certificate except one injury under section 335, P.P.C., do not fall within the prohibitory clause of section 497, Cr.P.C. And so far as the injury under section 335, P.P.C. Is concerned, it was also caused on the knee which requires further inquiry. In support of his arguments, he has relied upon the following case-law:--
(1) 2010 PCr.LJ 379, (Muhammad Ilyas v. The State and another). In this case, it was held by learned single Judge of Lahore High Court that accused was ascribed a fire arm injury to the injured witness on his right leg near his knee. Injury falling within section 337-F(vi), P.P.C. Did not fall within the prohibitory clause of section 497(1), Cr.P.C. Consequently, in this matter the bail was allowed.
(2) 2008 SCM R 1621, (Umar Hayat v. The State and another). In this case, the honourable Supreme Court held that precise allegation against the petitioner is that he fired 4/5 shots from his pistol on the complainant, out of them one fire hit on the left knee of the complainant. Said injury comes within the ambit of section 337-F(v), P.P.C., finally the Petition was converted into appeal and the impugned order of learned High Court was set aside and the petitioner was granted bail.
(3) 2000 PCr.LJ 642, (Waris and 2 others v. The State). In this case, the learned single Judge granted bail being a case of further inquiry on the ground that prosecution had itself conceded that no empties were recovered from the place of wardat and there was a contradiction in Medico-Legal Report of injured and deposition of prosecution witnesses as recorded under section 161, Cr.P.C.
(4) 2010 PCr.LJ 304, ,(Shafqat alias Shafoo v. The State and another). In this matter, the learned Judge of Lahore High Court admitted the accused to bail with observation that injuries attributed to accused on the left hand of injured/complainant were covered under section 337-F(v), P.P.C.
Which do not fall within the prohibitory clause of section 497 Cr.P.C. And substantive punishment was daman.
' In rebuttal, the learned A.P.-G. Opposed the bail application and argued that though no empties were recovered from the place of incident but it is a fact that applicant was present at the place of incident duly armed and shared the common intention with co-accused. However, he conceded to that two witnesses namely Hyder and Ali Gohar in their statements recorded under section 161, Cr.P.C. Did not implicate the applicant and they stated that they only know about the incident but they could not point out or identify the applicant being involved in the crime. He further conceded to that two persons having a same set of evidence were let off by the police, they were released under section 497, Cr.P.C. And their names were placed in Column No,2 of the challan. He insisted that the injured P.Ws. Are supporting the version of complainant and medical evidence as well. He has also conceded to that all the injuries were caused on thigh and knee and do not come within the prohibitory clause of section 497, Cr.P.C. Except one injury falling under section 335, P.P.C.
' After hearing the arguments of learned counsel, it is clear IA beyond any shadow of doubt that no empties were recovered from the place of incident and two accused having the same set of evidence were let off by the police and they were not only released but their names were also kept in Column No,2 of the challan. The previous enmity, is also an admitted fact and the learned counsel for the applicant has also placed on record a copy of F.I.R. Which was lodged by accused party against the complainant party 20 days earlier before this incident. So far as sharing of common intention of applicant with other accused is concerned, it is always subject to further inquiry unless there is overwhelming evidence on the contrary. Reference can be made to 2010 M LD 877 in which it was held that per settled law at bail stage, the common intention of an accused, which he stated to have shared with other accused in committing the crime in question, is always subject to further inquiry unless there is overwhelming evidence to the contrary. In the present case, the statements of witnesses recorded under section 161, Cr.P.C. Are also not consistent with the statement of complainant in F.I.R. And even no empties were recovered from the place of incident and all the injuries caused to the injured persons also do not come within prohibitory clause of section 497, Cr.P.C. Except one injury. Therefore, in my view, this is a case of further inquiry and the applicant is entitled for concession of bail.
' Keeping in view the aforesaid circumstances, the applicant is enlarged on bail subject to his furnishing solvent surety in the sum of Rs,2,00,000 (Two lacs) and P.R Bond in the like amount to the satisfaction of the trial Court.