Muhammad Ismail, petitioner, who was arrested in Crime No. 89/2009 at Police Station Sehnsa District Kotli is facing trial in Additional District Criminal Court Sehnsa for offences under Sections 302, 324, 341, 337-A(1), 337-F, 337-F(2), 337-D & 34,APC read with 13/20/65, Arms Act. The allegation against the petitioner alongwith other accused-persons as per F.I.R registered on 30.7.2009 is that on 30.7.2009 at 10:00 a.m. Rizwan and Anees cousins of the complainant were proceeding towards Jungle alongwith their cattle. When they reached nearby the house of Tabarak and Muhammad Ismail, the accused-persons alongwith Rameez forbade them to carry their cattle and wrongfully restrained them. Thereupon, Rizwan and Anees came back to their house and told the story to the complainant and his father, Muhammad Sadiq. Whereupon, he alongwith his father, Riyaz s/o Karamdad, Yasir s/o Akhter Hussain and Zahoor s/o Sadiq went forward where the accused- persons armed with .12-bore guns were standing near their house in furtherance of their common object to kill. As soon as they reached close to them, Tabarak accused fired a straight shot with .12- bore gun, which hit his father Muhammad Sadiq on his chest and the pellets also hit him on different parts of his body from chest to knee. Ismail, accused, fired a straight shot with .12-bore gun with the intention to do away with the life of Muhammad Riyaz s/o Karamdad, which hit him on his left shoulder, left arm, left thigh and on different 'parts of the middle of chest Rameez, accused, also fired shots with .12-bore gun with the intention to do away with the life of Zahoor Ahmad. The pellets landed on his right temple, throat, right side of throat, belly, under the right armpit, right shoulder, right elbow, wrist of right hand, backside of right hand and little finger of left hand, who got injured and fell down. Tabarak, accused, also fired a straight shot of .12-bore gun, which hit Yasir on his abdomen, who got severely injured. Muhammad Sadiq s/o Misri Khan succumbed to the injuries at the spot and the other injured persons fell down upon the ground. The occurrence was witnessed by complainant, injured persons and Rizwan, Anees, Tariq and Aftab, who also picked up the injured persons from the place of occurrence.
The motive behind the occurrence has been stated to be a dispute of forest land.
The petitioner was challaned before Additional District Criminal Court Sehnsa whereas the remaining accused-persons absconded and their names were placed in Column No. 2 of the challan. The charge appears to have been framed by the learned Additional District Criminal Court Sehnsa on 3.12.2009.
Now the case is at the stage of recording of the prosecution evidence.
The petitioner filed an application for grant of bail after arrest before Additional District Criminal Court Sehnsa on 4.12.2009, which was declined vide its order dated 12.2.2010. It is the aforesaid order which has been assailed through the instant revision petition.
Sardar Shahid Ajmal, the learned Counsel for the accused-petitioner argued with vehemence that a false case has been registered against the accused-petitioner on account of enmity. The learned Counsel pointed out that the accused-petitioner is an old person aged 74 years, who was also injured by P.Ws Zahoor Ahmad, Muhammad Riyaz and Yasir Hussain. The learned Counsel further contended that the police arrested the petitioner while he was severely injured and he sustained injuries upon his head caused by a hatchet but the prosecution did not disclose his injuries. The learned Counsel maintained that the challan of the case was presented on 4.11.2009 but despite the best efforts of the trial Court neither the complainant nor any eye-witness appeared before the trial Court and only evidence of two witnesses of recovery has been recorded so far, which shows the lack of interest on the part of prosecution. The learned Counsel stressed upon the point that the petitioner also filed an F.I.R against the complainant party but the local police refused to register a case against them. The learned Counsel agitated that the accused-petitioner is an old person aged 74 years who is also sick; therefore, his further detention will be detrimental to his life. The learned Counsel pressed into service the submission that an injury attributed to him is also simple in nature, and he has not been alleged to cause any injury to the deceased but the trial Court ignored all the above-mentioned facts and arguments raised by the learned Counsel for the petitioner and exercised its discretion in an arbitrary manner; therefore, the impugned order may be set-aside and the accused-petitioner may be released on bail. In support of his contention, the learned Counsel relied upon the following case law:--
4. PLD 2008 Cr.Cases 8;
5. PLJ 2009 Sh. Court AJK 140; On the contrary, Muhammad Bashir, PDSP, appearing on behalf of the State submitted that the accused-petitioner has been nominated in the F.I.R and a specific role has been attributed to him.
The learned State Counsel pointed out that the case of petitioner falls in the ambit of prohibitory clause of Section 497, Cr.P.C; therefore, he is not entitled to the grant of bail. The learned State Counsel defended the impugned order on all counts.
I have given my due consideration to the arguments addressed at Bar and perused the record with care. A perusal of the challan file shows that the challan against the accused-petitioner was presented on 4.11.2009 but neither complainant nor injured witnesses and eyewitnesses appeared before the trial Court in spite of granting several opportunities; therefore, the trial Court ordered the prosecution to produce P.Ws.3 to 10 and 12 on its own responsibility but in vain. During the aforesaid period of trial, the statements of Muhammad Latif (P.W.11) and Mahboob (P.W.13) have been recorded, who have been cited as recovery witnesses. Amongst them, Mahboob (P.W.13) deposed about the recovery of rifle allegedly taken into possession at the instance Of the accused- petitioner. In such state of affairs, accused-petitioner cannot be left at the mercy of prosecution, which is bent upon to delay the conclusion of the trial to see that the accused should remain detained in the lockup for indefinite period; therefore, unjustified delay becomes a valid ground for grant of bail keeping in view the special circumstances of the case. My aforesaid view finds support from a case titled Wazir Ali V. The State (PLD 2005 Karachi 201).
It will not be out of place to mention here that accused-petitioner is admittedly an old person aged 74 years and no overt act whatsoever has been attributed to him towards the deceased. He has been ascribed to cause a simple injury to a prosecution witness, who himself did not appear before the trial Court support of allegation. Similarly, the evidence of recovery about the accused- petitioner testified by Mahboob (P.W.13), who is father-in-law of the deceased, is prima-facie of weak nature and cannot be treated as a barrier to'refuse the concession of bail. Moreover, according to the accused-petitioner, he was injured by the P.Ws. A medical certificate placed on the record by the petitioner prima-facie, supports his version that he sustained a cut wound on scalp in occipital region 5.7cm in length 1/2-1cm in depth and bone is exposed. The weapon used is sharp edged and nature of injury is Shajjah-iMudihah whereas other injuries are Ghayr-Jaifah- Damiyah caused by blunt weapon. The above mentioned medical certificate shows that the petitioner sustained injuries by sharp edged weapon as well as by blunt weapon, which naturally cannot be caused by one person only but the aforesaid injuries sustained by the accused- petitioner were deliberately suppressed and not explained in F.I.R. Moreover, neither the injury form nor a medical examination report was annexed with the challan file. Therefore, the question, as to which party committed aggression, is yet to be determined and it also casts doubt on the veracity of prosecution story that why the role of complainant-party was suppressed.
It also reveals from the perusal of record that Sardar Aqeel Ahmad (P.W.18), who conducted the postmortem of the deceased and also examined the injured P.Ws and the accused-petitioner but neither the injury form nor the, medical examination report prepared by him was annexed with the challan file, or with the police record. In this view of the matter, reasonable grounds do not exist for believing that the petitioner has been guilty of an offence punishable with death or imprisonment for life and there is some evidence on the record which on the tentative assessment creates doubt with respect to his involvement in the crime. Thus, there are sufficient grounds for further inquiry into his guilt but the Court below failed to exercise its discretion in a proper and judicious manner; therefore, the impugned order is not sustainable.
For the reasons listed above, I accept this revision petition, set-aside the impugned order dated 12.2.2010 and allow bail to the accused-petitioner in sum of Rs. 1,00,000/- (one lac) with one surety in the like amount to the satisfaction of any Magistrate 1st Class Kotli/Sehnsa. If the needful is done, he shall be set-free forthwith provided not required in any other case or offence.