1. ' SHAHID ANWAR BAJWA, J. F.I.R. No, 135/2009 was recorded at Police Station, Khanpur Mahar on 27- 7-2009 for an incident alleged to have taken place on 24-06-2009. Complainant stated that on 24-6-2009 at about 9 a.m. He went for grazing his cattle and left his daughter, wife and brother at his home. At about 10-00 a.m. He heard two fire reports from his house. He rushed to his house and saw two co-accused persons armed with K.K, present applicant armed with a double barrel gun standing in his house. Co-accused Muhkamuddin had caught hold of his daughter by her hair and stated that if deceased Gut Bano is not given to him, they would kill' her. Muhkamuddin fired with K.K upon daughter of the complainant and so did Himat Ali. She fell down. It is further stated that present applicant fired upon the complainant and his brother but missed. Thereafter accused persons while resorting to aerial firing went away. It is further stated in the F.I.R. That Police refused to register F.I.R. And consequently the complainant approached Additional Sessions Judge, Ghotki and after order was passed by the Court, F.I.R. Was recorded.
2. ' Learned counsel for the applicant made the following submissions:--
(1) There is delay of more than one month in recording of F.I.R. And such delay is fatal for the case of prosecution, at least at the bail stage. He relied upon Karim Hyder and another v. The State, 1986 SCMR 938.
(2) It is not alleged in the F.I.R. That the applicant caused any injury to the deceased. As far as firing on the complainant and his brother is concerned, it is at best a case of ineffective firing. He relied upon Faraz Akram v. The State, 1999 SCMR 1360 and Mohammad v. The State, 1998 SCMR 454.
(3) No empty of gun has been recovered from the place of Vardat.
(4) Applicant was found innocent during Police investigation and was placed in column 2. However, Magistrate disagreed with the Police report and ordered that he be joined as one of the accused persons. Learned counsel submitted that this makes it a case of further inquiry. He relied upon Nasrullah Khan v. The State, 2007 PCr.LJ 797 and Muhammad Ilyas v. Aijaz Ahmed Butt and another, 1992 SCMR 1857 and Abdul Raul v. The State, PLD 1996 Karachi 372.
(5) Learned counsel next submitted that on 8-5-2010, he voluntarily appeared before Sessions Court and filed a pre-arrest bail application and he was taken into custody upon rejection of his pre-arrest bail application and, therefore, the applicant has not been an absconder. He relied upon Mitho Pitafi v. The State, 2009 SCMR 299.
3. ' Mr. Anwar Ali Lohar, learned counsel for complainant, submitted that accused is nominated in the F.I.R. And there is clear case of common intention. Mr. Shyam Lal Ladhani, learned A.P.-G., frankly conceded that no empty of the gun has been recovered from the scene of the incident. He submitted that the present applicant is father of the main accused and the occurrence took' place in the house of the complainant and, therefore, inmates of the house were natural witnesses. He relied upon Ghulam Nabi v. The State, 1996 SCMR 1023.
4. ' I have considered the submissions, made by the learned counsel and have also gone through the record.
5. ' First contention of the learned counsel was that there is delay in recording of F.I.R. Because incident took place on 24-6-2009 and F.I.R. Was lodged on 27-7-2009. Learned counsel relied upon Karim Hyder's case (supra). It was a case relating to an offence under the Zina Ordinance. F.I.R. Was lodged on 5-7-1984. Complainant stated that on 21-6-1984 when he returned from Taravih prayers, he found his 9/10 years son missing from his cot. He enquired from his daughter-in-law and she did not give him any satisfactory explanation. Next morning they found dead body of the boy' in a well.
6. His daughter-in-law disclosed that the petitioners armed with gun entered the house, raped her and when the deceased woke up and saw the act, they took him away. The boy was murdered and his body was dumped in a well. Supreme Court observed that occurrence took place on 21-6-1984.
7. Daughter-in-law informed the complainant on 25-6-1984 and F.I.R. Was lodged on 5-7-1984 and this entitled the accused persons to bail. In the present case, it is stated in the F.I.R. Itself that the complainant approached the Police and when the Police did not register the F.I.R., he approached the Additional Sessions Judge and F.I.R. Was registered only after order was passed by the Additional Sessions Judge. Therefore, delay in lodging of F.I.R. Is satisfactorily explained and this ground urged by the learned counsel is of no help to him.
8. ' Regarding second ground urged by learned counsel, it is stated in the F.I.R. That it was Muhkamuddin who was holding Gul Bano by her hair; it was Muhkamuddin who fired upon her with K.K and it was co-accused Himat Ali who also fired upon her with K.K. Present applicant is not alleged to have caused any fire injury to the deceased. All that he is alleged is that he was armed with a double barrel gun and he fired at complainant Pehlwan and his brother but missed.
9. Therefore, as far as deceased is concerned, there is no firing alleged to have been made upon the deceased by the present applicant and as far as complainant and his brother are concerned, it is at most a case of ineffective firing. Learned counsel relied upon Faraz Akram's case (supra).
10. Complainant stated that he was a practising advocate and his younger brother was standing outside his house along with a friend. Two persons passed in a car with blaring music. They were told to drive slowly and to play music at a low volume. Abuses were given. Shortly thereafter, the petitioner was also there when the same car returned and five persons, two armed with fire weapons and one armed with a baseball, bat and yet another with a Danda, came. The car stopped, weapons were aimed. Attack was launched and one with a baseball bat gave blows to the head of deceased. The accused carrying Danda also inflicted blows. Though firearm injury was reported, it was contended that role of the petitioner was of ineffective firing as injury had been caused by firing by another person. Supreme Court allowed bail. In Muhammad's case (supra) no injury had been attributed to the petitioner during occurrence. It was held to be a case of further inquiry and bail was allowed. In the present case also, it is a case of ineffective firing and a case where no injury is alleged to have been caused to deceased or to anyone else and, therefore, case for bail is made out.
11. ' Learned counsel further submitted that he was found innocent during investigation and was let off by Police and therefore, a case of further inquiry is made out. He relied upon Nasrullah's case (supra). It was observed in that case that opinion of the Magistrate that there appeared to be sufficient ground for proceeding against the applicant is not to be equated with the existence of reasonable grounds for believing that the accused was guilty of offence in a prohibited degree case.
12. ' Since it was argued that the applicant has been an absconder, I may also take up here the question of abscondance of the accused. It may be pointed out again that the present applicant was let off by Police and was placed in column 2 and it was Magistrate who ordered that he be joined as accused person. Present applicant on 08-05-2010 voluntarily appeared before the Sessions Court and filed a pre-arrest bail application and it was upon rejection of such application that he was taken into custody. In Muhammad Ilyas's case (supra) accused person had been placed in column 2 but he approached the trial Court for bail before arrest and on failure of that applicant filed an application in the High Court for that purpose. The case is clearly distinguishable.
13. However, reliance by learned counsel on Mitho Pitafi's case (supra) is not without substance, particularly so when in this case it is not alleged that the applicant was an absconder and was arrested after a long period. It is a case where the accused himself approached the trial Court and filed application for bail before arrest.
14. ' Learned A.P.-G. Relied upon Ghulam Nabi's case (supra). Facts of that case were that four years prior to occurrence, complainant Feroze married his daughter with the petitioner. When the complainant visited his daughter, she complained that she had been maltreated, she had marks of kicks and fists blows on her body. Complainant took his daughter to his house. Few days later, the petitioner went to the house of complainant to take back his wife. Complainant asked him to give surety which annoyed the petitioner and he threatened that he would kill daughter of the complainant and then would not be need for surety any more. On the day of incident, complainant and his family members were sleeping at home when the petitioner along with two accused trespassed into the house and killed daughter of the complainant. It was in this context that the Supreme Court observed that occurrence took place in the house of the complainant and, therefore, inmates of the house are natural witnesses. In the present case, complainant stated that he left the house at 9 O'clock for grazing cattle and it was one hour later that he heard fire reports.
15. He rushed to his house and saw accused Muhkamuddin holding the deceased by her hair and stated that he would kill her and then fired at her and killed her.. There was one hour's time gap between the time when the complainant left house and the time when he heard fire reports.
16. Accused, so the F.I.R. Tries to make out, fired in the air to call back the complainant so that they could murder her in presence of the complainant. This creates doubt. Contention of learned counsel for complainant that there was common intention is not sufficient at this stage to refuse the facility of bail because common intention in such like cases can be gone into after recording evidence.
17. ' Result of the above discussion is that this bail application is allowed and the applicant is ordered to be admitted to bail upon his executing P.R bond in the sum of Rs,3,00,000 (Three Lac) with one surety in the like amount to the satisfaction of the trial Court.