Seeks bail after arrest in case FIR No, 145 of 2011 under Sections 324, 337-F(iv), 34 P.P.0 registered at Police Station Bohar Gate, Multan on the complaint of one Muhammad Ramzan who has alleged in the FIR that he was a grave digger and also knit `chiks' (a hanging screen made of reeds); he. had a dispute over the supply of `chiks', the cost whereof he had already received from Shabbir etc; the buyers of the `chiks' had a brawl with Muhammad Ramzan complainant, during the course of which, Sabir (petitioner) being armed with a pistol, aimed and shot at the complainant which landed on his arm; the petitioner and his co-accused also attempted to snatch the motorcycle of the complainant; the accused after committing the offence fled away.
2. Muhammad Ramzan complainant was medically examined at 5:15 p.m. on 08.11.2010 under the orders of a magistrate and his MLR reveals a fire-arm injury on the palmer aspect of right hand extending from medial side, upwards and causing the exposure of ulna bone; this injury has been declared as Ghyr Jaifah Mudihah falling within the definition of Section 337-F(iv) P.P.0 by the Medical Officer.
3. Learned counsel for the petitioner submits that there is inordinate delay of 8 days in judgment of FIR and no explanation has been offered by the complainant; the MLR is inconsistent with the allegations contained in the FIR as right arm of the complainant had not been injured during the occurrence; the statements of the prosecution witnesses recorded under Section 161 Cr.P.C. are in contrast to the version of the complainant as they have mentioned about the infliction of an injury on the left arm of the injured; the petitioner was arrested on 21.11.2010, sent to the judicial lockup on 02.12.2010 and despite being on physical remand for maximum period, permissible under the law, no weapon of offence had been recovered at the instance of the petitioner; the Investigation Officer after thorough investigation reached the conclusion that the circumstances of the case were doubtful so he formulated a report under Section 173 Cr.P.C. recommending cancellation of the case; no repetition of fire shot has been alleged against the petitioner; the seat of injury is non- vital part of the body and insertion of Section 324 P.P.0 by the police is questionable; lastly submits that the offence with which the petitioner stands charged, does note catch the prohibition of Section 497 Cr.P.C.
4. On the other hand learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently opposed the grant of bail to the petitioner with the contention that the complainant was denied the right of judgment of FIR by the police so he approached the learned Ex-officio Justice of Peace, through an application u/S. 22-A/22-B Cr.P.C., obtained an order therefrom and then, the instant FIR was registered; Muhammad Ramzan, complainant was Inedically examined within one hour of the occurrence and the Medical Officer has not declared his injury doubtful or fabricated; the opinion of the Investigation Officer is not binding upon the Court and that the cancellation report prepared by the police is a result of dishonest liaison between the accused and the I.O. lastly submits that the offence squarely falls within the ambit of prohibitory clause of Section 497. Cr.P.C.
5. Arguments heard. Record perused.
6. It has been alleged by the complainant that Muhammad Sabir petitioner had fired a pistol shot which landed at his arm. The actus reus alleged in the FIR is that on the point of supply of `chiks' a heated debate took place between the petitioner etc. and the complainant which ensued in the alleged occurrence. The complainant did not specify in the FIR as to on which arm, left or right, the bullet had hit him. The MLR however, reveals a fire-arm injury on the palmer aspect of right hand, going from lateral to medial side, at palmer aspect of right hand with the passage of 0.3 c.m, continued with a lacerated wound on the ulnar side of right forearm exposing 1 c.m portion of the right ulner bone, which has been declared by the medical officer as Ghyr Jaifah Mudihah, falling within the definition of Section 337-F(iv) P.P.C. The petitioner did not repeat fire shot nor he did any other offensive act against the injured. The seat of injury is the non-vital part of the body. The complainant being empty handed was at the mercy of the petitioner who could have done him more harm but he abstained from doing so. The eye-witnesses, three in number were recorded by the I.O. under Section 161 Cr.P.C. who in their statements, have contended that the solitary fire shot made by the petitioner had landed on the left arm of the complainant which is inconsistent with the seat of injury i,e, right arm, as shown by the medical officer in the MLR. A number of persons joined investigation before the I.O. in defence of the accused/petitioner and submitted their sworn affidavits highlighting the innocence of the petitioner who after having been arrested underwent physical remand of about 12 days but no weapon was recovered at his instance. The I.O. after extensive investigation reached the conclusion that the petitioner was not responsible for the offence alleged against him and that he had been falsely involved in this case by the complainant.
He prepared a cancellation report under Section 173 Cr.P.C. The opinion of the Investigation Officer though not binding upon the Court, cannot be overlooked casually if it is based upon cogent and plausible material. The persuasiveness of the opinion of an Investigating Officer can be gone into for the purpose of adjudication of the bail plea of an accused. Keeping in view the eye-witness account and the medical evidence, the applicability of Section 324 P.P.0 is open to serious exception. The injuries received by the complainant fall within the definition of Section 337-F(iv)
P.P:C punishable with imprisonment for five years which does attract the prohibitory clause of Section 497 Cr.P.C. There are reasonable grounds to believe that the petitioner's case calls for further inquiry into his guilt as contemplated under Section 497(2) Cr.P.C.
7. For what has been discussed above, the instant petition is allowed and the petitioner is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs,1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.