' SALMAN HAMID, J.---Saud Hussain, son of Late Kausar Hussain, (applicant) is booked under F.I.R.
No,392 of 2011 of Police Station Darakhshan for an offence punishable under section 324 Pakistan Penal Code, (F.I.R.).
2. It appears from the F.I.R. That applicant picked up one Shakil, son of Noor Muhammad, an oil massager, (complainant) on 29-10-2011 (Saturday; around 2230 hours from Sea View Canteen No,1 who sat on the front seat of the car, Core Daihatsu. Applicant inquired, from him if he, (complainant) ever murdered anyone or seen a murder by which the complainant got scared and asked the applicant to stop the car which he did not and he (applicant) also lost temper. Applicant also told the complainant that oil massager who was killed yesterday was his job and if the complainant would not accompany him (applicant), he would also kill him. This was resisted.
Applicant took out his pistol; loaded it and tried to shoot the complainant. During this around 2240 hours the car bumped into a footpath near Pizza Hut canteen at which time the complainant tried to catch hold of the pistol when the applicant attempted to kill him by shooting, which missed and the bullet passed near/from him through the open window of the car. Complainant succeeded in getting hold of the pistol; then he started shouting for help. To retrieve pistol back, the applicant bit on complainant's right arm. During this a policeman came who saved the complainant from the applicant at which time people gathered and Sea View mobile 'also came; A.S.-I. Izhar Shah got hold of the applicant and also searched the car and found an empty of the bullet. The applicant took out Pistol's licence from the car and gave it to the police.
3. In view of the above narration of the F.I.R., it was argued by learned counsel for the applicant that the police have falsely implicated the applicant though no offence under section 324, P.P.C. Had been made out inasmuch the story of the prosecution is incredible. It was also argued that though it is mentioned in the F.I.R. That the bullet went through the window, no bullet mark was found in the surrounding area. It was also implored that admittedly at the time of incident large number of crowd had been gathered but no eye-witness was produced. It was stressed that though the recoveries were made at the spot, no mashirnama of arrest and seizure was made there and then.
Next it was asserted that the applicant himself handed over the pistol licence to the police as evident from the F.I.R. It was also argued that despite availability of the complainant and the allegation that he was bitten by the applicant, no medical examination was conducted and no medical report is available on record to substantiate such an allegation. It was stated that the story of the prosecution is unbelievable when it comes to passing of the bullet from the window of a small Core car is concerned, more particularly when such was missed by few inches from the complainant through struggle was going on between him and the applicant. It was contended that story of the prosecution does not seem to be reasonable and require further inquiry as contemplated under section 497(2), Cr.P.C. It was also mentioned that the police report itself suggest that they are finding witnesses and so far they have failed to bring forward anyone. This too make the case of the applicant that of further inquiry and on this as well the applicant is entitled to bail. It was also stressed that first of all the applicant is not involved in any shooting, as alleged in the F.I.R., and if it is taken to be so, then it was a case of ineffective firing and again on this score the applicant is entitled to bail.
4. Bail Application was vehemently opposed by the State counsel. It was argued that there was no enmity between the complainant and the applicant and/or the police officials and the applicant and there was no question of false implication of the applicant in the case. It was argued that all the grounds those have been raised by the learned counsel for the applicant require deeper appreciation of evidence which is not permissible at bail stage and therefore the applicant is not entitled to the same. It was argued that the applicant admitted killing another oil massager in the morning (Friday) and that was enough for denial of bail.
5. I have heard the learned counsel for the applicant and the State counsel and have perused the record. It may be noted that the F.I.R. Clearly shows that the complainant was picked up by the applicant and when he was travelling with him, the applicant asked him about killing of a person or seeing a person being killed and because of such, complainant got scared, and tried to come out of the car which was resisted by the complainant and thereafter he, (Complainant) took out his licenced pistol, loaded it and then tried to shoot the complainant which missed and the bullet went out of the car. Not only this, after such shooting, the complainant also got hold of the pistol which was retrieved by the applicant by biting on complainant's right arm with the result that the car bumped into the footpath. The complainant shouted, people gathered and police mobile of P.S. Darakshana also came on the spot. Pinching factor is that if a person was driving a car and the person sitting next to him wanted to skip therefrom, such was possible only when the speed of the car was extremely slow or the car was stationary. It is mentioned in the F.I.R. That the applicant took out his pistol and loaded it which was only possible either if the car was extremely slow or stationary at which time, the complainant could have conveniently escaped from the car which seemingly he did not. All this creates reasonable doubt and makes the case of further inquiry. One more thing is that when the applicant was loading the pistol, the complainant could have very conveniently got hold of him, which it seems he did not. Whey such .Was not done again needs to be probed into. It is also incredible to note that despite scuffle in the car and shooting and that complainant was sitting next to the applicant he, (complainant) survived the shot though the applicant, (keeping in mind sitting position of complainant and the applicant), the applicant could have very conveniently poked the pistol into complainant's body and without aiming could have shot him ensuring that he does not miss. This did not happen and it prima facie shows that applicant never had in mind and/or he did not attempt to kill the complainant. It has also come on record that the applicant himself took out the licence form the car and handed it over to the police personnel. It was also mentioned during the course of argument that in fact the complainant tried to rob the applicant of his wallet and when it was resisted, the car bumped into the footpath and thereafter he tried to run away and in the meanwhile police mobile also came and other people also gathered and the story was changed altogether by the police inasmuch as according to the applicant the police and the complainant who being a massager were in league with each other in robbing the people in the guise of being massagers and when the complainant was got hold of, the police who were already watching came up with eth story, which otherwise has no truthfulness attached to it.
6. It is a tried principle of law that bail cannot be withheld as a punishment and it is not to be stretched in favour of prosecution and that if a case of further inquiry is made out, the applicant is entitled to bail. Such was also held by the apex court in the case of Abid Ali alias Ali v. The State 2011 SCM R 161. It is also well settled principle of law that confession before police is inadmissible and should not be given any weight as was also held by a Division Bench of this court in the case of Sharif v. The State (2000 PCR.LJ 562). It is also true the circumstantial evidence is always a weak evidence inasmuch as it could easily be procured by the prosecution and such was also observed by a Division Bench of this court in the case of Abdul Qadir, Moti Wala v. The State- (2000 PCr.LJ 1734) and under such circumstances case always fall within the scope of section 497(2), Cr.P.C.
Inasmuch it calls for further inquiry. In the cases of ineffective firing courts have always leaned in favour of the applicants. In the case in hand admittedly there was ineffective firing.
7. Narration as available in the F.I.R. Raises many questions to be answered all of which require further inquiry and presently it seems that the prosecution story is made up and is also full of doubts. Under the circumstances, the benefit should got to the applicant and therefore he is enlarged on bail subject to his providing a solvent surety in an amount of Rs,500,000 and PR bond in the like amount to the satisfaction of the trial court. Needless to mention that outcome of the present bail application shall be prejudice the trial of the case in any manner whatsoever.