Muhammad Farooq, the petitioner seeks his post-arrest bail in a case registered against him vide case FIR No, 210/2009 dated 11.06.2009 for the offences, under Sections 302, 148, & 109 of PPC registered at Police Station Sarwar Shaheed, District Muzaffar Garh.
2. Precise allegation against the petitioner as per FIR is that on 11.06.2009 at about 2.30 p.m. petitioner along with 12/13 co-accused persons, armed with different weapons, caused the death of Ali Ahmad, brother of the complainant. Muhammad Yousaf co-accused fired with .12-bore gun which the deceased Ali Ahmad on his head, Ghulam Farid s/o Ghulam Sarwar fired which hit Ali Ahmad deceased on his left leg whereas the petitioner fired with his pistol which hit Ali Ahmad deceased on his right leg.
3. Learned counsel for the petitioner submits that allegation against the petitioner that he fired with his pistol which landed on the right leg of the deceased is falsified by the post-mortem report as Injury No, 4 on the person of the deceased on his right leg was declared as an exist wound as according to the doctor margins of this injury was everted and abraded. He further submits that even otherwise Injury No, 4 has been declared as Gher Jafia Mutalahima which is simple in nature and according to the post-mortem report death of the deceased was caused due to Injury No, 1 which is on the skull of the deceased and is attributed to Muhammad Yousaf co-accused. Learned counsel for the petitioner further submits that during investigation the petitioner was declared innocent by the local police. Learned counsel for the petitioner has annexed the copy of report under Section 173 of Cr.P.C. dated 29.07.2009 and according to the findings of the police, the petitioner was not found present at the place of occurrence at the time of occurrence that then investigation of this case was transferred to SP Regional Investigation, DG Khan who after thorough investigation came to the conclusion that the petitioner was not present at the spot at the time of occurrence and was declared innocent and this investigation was also verified by RPO. It has been further argued that during investigation pistol was not recovered from the possession of the petitioner. Lastly, learned counsel for the petitioner submits that the petitioner was arrested on 18.07.2009 and he is behind the bar since then and trial of the case has not started till yet, so the petitioner is entitled to the grant of bail.
4. Learned DDPP assisted by learned counsel for the complainant vehemently opposed the bail petition on the grounds that the, petitioner is nominated in the FIR with specific allegation that he caused injury on the right leg of the deceased with his pistol; that Doctor has wrongly opined regarding Injury No, 4 attributed to the petitioner that margins of this injury were everted and abraded; that the opinion of the police regarding innocence of the petitioner is not binding upon the Court; that the offence falls within the purview of prohibitory clause of Section 497 of Cr.P.C. so the petitioner is not entitled to the concession of bail.
5. I have heard the learned counsel for the parties and gone through the record.
6. According to the post-mortem report Injury No, 4 is attributed to the petitioner but this injury has everted and abraded margins therefore it is not an entry wound so the allegation against the petitioner that he caused injury on the right leg of the deceased is falsified by the post-mortem report. The contention of learned counsel for the complainant that Doctor has wrongly opined regarding this injury cannot be given any weight as doctor himself has declared it as au exist wound. Even otherwise this injury is on the non-vital part of the body which is simple in nature and only Injury No, 1 on the skull of the deceased has been declared cause of Heath by the doctor. It has also been noticed that petitioner has been declared innocent in two successive investigations and according to the opinion of the police, the petitioner was not present at the spot at the time of occurrence. Although the ipsidixit of police is not binding upon the Court but this ipsi dixit is relevant for the purpose of decision of bail. During investigation pistol has also not been recovered from the possession of the petitioner. The petitioner is behind the bar since 18.07.2009 and till yet not a single witness has been record.
7. For what has been discussed above, the case of the petitioner comes within the purview of further inquiry so by allowing this petition. I admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.