' ASSADULLAH KHAN CHAMKANI, J.---Petitioner Khan Zada, through the instant petition, seeks his release on bail in case F.I.R. No,60 dated 19-1-2010 registered for offence under section 324/34, P.P.C.
At Police Station Daudzai District Peshawar.
2. The contents of F.I.R. Reveal that the complainant while in injured condition at Casualty Ward of LRH Peshawar reported the matter, in terms, that he along with his brother Nigar Ahmad and Inayatur Rehman son of Hifzur Rehman at the relevant time were present at the crime spot when in the meanwhile Khan Zada, the present petitioner, Noor Zaman sons of Juma Khan emerged duly armed and started firing at us with fire-arm with the intention to kill as a result he was hit on his right leg while his brother Nigar Ahmad escaped unhurt. Besides him the occurrence was stated to be witnessed by Nigar Ahmad and Inayatur Rehman. Motive for the dispute over landed property, hence the case was registered against the accused.
3. Learned counsel for petitioner contended that except mere allegations in the F.I.R., there is no evidence to connect the petitioner with the alleged offence. Further submitted that there is inordinate delay in lodging the F.I.R., which casts doubt upon the prosecution version. He also pointed out that the weapon was not specified and only "aslaha atasheen" has been mentioned and that two real brothers were charged for indiscriminate firing upon the complainant and since the complainant received a single injury i,e,, on his leg, which was attributed to the petitioner but not a single empty or spent bullet has been recovered from the spot. He was also of the view that mere absconcion would not create any hurdle in the way of petitioner if the case is otherwise fit for bail. Lastly submitted that the trial has commenced but that would not constitute legal bar to the grant of bail if the case of the petitioner is otherwise fit for bail.
4. Learned counsel for complainant assisted by learned State counsel while opposing this petition contended that the petitioner has been directly nominated in the promptly lodged F.I.R.; that the occurrence took place in daylight with specific role attributed to the petitioner with strong motive established on record and that the petitioner remained fugitive from law for a considerable time and that the trial has commenced, therefore, in this background the petitioner has no case for the grant of bail.
' Arguments heard. Record perused.
5. While dealing with bail matters the court had to tentatively assess as to what type of weapon accused was wielding at the time of occurrence i,e, whether it was dangerous, lethal or was of a very low velocity. Use of fire-arm in committing a crime in ordinary A circumstances was associated with intention to kill but all the material available on record must be clearly seen because liberty of a person is always involved in bail matters. In this case two real brothers were charged for indiscriminating firing upon the complainant; who received only a single injury with entry wound at medial aspect of right lower leg about 1/4" x 1/4" in size with corresponding exit wound at lower leg at lateral aspect above the right lateral malulus wound is about 2" x 1-1/2" in size. , no recovery whatsoever or any spent bullet was recovered for Moreover the spot. If the accused had any intention to kill he would select the vital part of the body. It is also a consistent view that if the injury caused to the victim is not on vital part or dangerous, then ordinarily bail is granted to the accused in the absence of strong exceptions. As far as the plea taken by the State regarding abscondence of petitioner and commencement of the trial, the commencement of the trial of the case if an accused was entitled to the concession of bail on merits, then the factum of commencement of the trial would not constitute any legal bar to the grant of bail. Similarly, mere charge of absconcion, principle of refusing bail to absconder was not strictly applicable in every case. Bail could not be refused to an accused merely on the point of abscondence, if otherwise his case is arguable for the purpose of bail.
For what has been discussed above, this petition is allowed and the petitioner is granted bail in the sum of Rs,300,000 with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local and men of means.
' Record of the lower court be sent back immediately.
' The above observations are tentative in nature, which shall not influence the mind of the trial Court at the trial rather it shall record its own findings on the basis of evidence to be recorded.