' MUHAMMAD QASIM KHAN, J.---Petitioner seeks post-arrest bail in case F.I.R. No, 246 of 2010 under sections 302/324/148/149, P.P.C. Registered at Police Station Jalalpur Bhattian, Hafizabad.
2. Briefly the allegation against the petitioner is that he armed with 44-bore, along with co-accused variously armed, knocked at the door and shouted to open the door as Cow had been taken away by the thieves and on his asking Akhtar Ali opened the door, whereupon, all the accused entered inside the house. Mansha co-accused raised lalkara and all the accused started firing, and the fire short by Zia Ullah (present petitioner) hit the right side of belly of complainant's brother.
3. It is argued by learned counsel for the petitioner that petitioner has been Involved falsely in this case, occurrence took place in the dark hours of the night; from bare reading of the F.I.R. The story of prosecution appears to be concocted, as how it is possible that complainant while standing on the roof, saw the occurrence in such a way that she categorically explained each and every injury caused by nine accused persons. Further argued that petitioner remained on physical remand but no weapon was recovered from him and the police had come to the conclusion that at the time of occurrence the petitioner was empty handed and did not cause any injury to the deceased.
Further contended that injury attributed to the petitioner is on right side of abdomen but as per post mortem report no injury exist on the right side or the abdomen and even Injuries Nos.4 to 7 present on the left side of the body are 1 cm x 1 cm, which could be attributed only by pellets and not by bullet and the medical evidence did not support the ocular account. Co-accused Ghazanfar and Mansha attributing the similar role have been enlarged on bail and as the case of the petitioner is at par with them, hence, he is also entitled for bail. Lastly, submits that there is no progress in the trial and the motive is not attributed to the petitioner:
4. On the other hand, the learned D.P.-G. Assisted by the learned counsel for the complainant argued that the petitioner is nominated in the F.I.R. With specific role, whole occurrence had taken place for involvement of the petitioner, otherwise there was no chance to open the door of the house; the complainant and eye-witnesses fully support the prosecution story; adds that although the injury as per post-mortem report is not on the right side of the abdomen, but Injury No, 6 on the upper part of the abdomen is caused by the petitioner and opinion of the police is not binding on the court; challan has been submitted; the petitioner is involved in a heinous offence and two innocent persons were murdered and petitioner is not entitled for bail. Further submits that although motive of earlier murder case is attributed to the co-accused of the petitioner yet as the deceased Akhtar Ali left his village due to earlier murder and started residing at the place of occurrence and the petitioner developed grudge against the deceased and for the same reason on his invitation the co-accused under his command and control committed this occurrence and lastly submitted that Ghazanfar was declared innocent by the police on his plea of alibi and the allegation against Mansha was of abetment, hence, case of the petitioner is distinguishable from the case of both the aforesaid co-accused who have been granted bail by the trial court.
5. Heard. Record perused.
6. The motive as alleged in the F.I.R. Is not attributed to the petitioner and the motive alleged against the petitioner during the arguments by the learned counsel for the complainant could not be established by any independent evidence as if the petitioner who was nephew of Shahnaz Bibi (deceased) wife of Akhtar Ali deceased and he had developed any grudge there must be some material establishing the same or he had to report this matter to his elders but nothing, is available on the file, which establish that prima facie no motive was attributed to the petitioner.
7. Even the prosecution story up to the extent of co-accused Ghazanfar is not believed by the I.O.
Although he was attributed specific fire arm injury on the left side of mouth of the deceased Akhtar Ali but his plea of alibi was found correct by the I.O. And believing the same he was granted bail by this Court vide order dated 4-5-2011 passed in Criminal Miscellaneous No, 4843-B of 2011 and co- accused Mansha was also attributed specific injury on the deceased Akhtar Ali but later on the complainant changed his stance and involved him in the abetment and he was also admitted to bail and even the stance of the complainant is not found correct with regard to the petitioner by the I.O. And as per investigation report he was present simply empty-handed at the place of occurrence.
8. Although the petitioner is nominated in the F.I.R. With a specific role yet only nomination of the accused in the F.I.R. Is not sufficient for refusal of bail to him. During the investigation, as per report of the police, petitioner was present empty handed and even no weapon of offence was recovered from him. In the F.I.R. The injury attributed to the petitioner is on the right side- of the abdomen of the deceased Akhtar Ali. After careful examination of the post-mortem report and injury statement no injury is available on the right side of the abdomen: Although the learned counsel for the complainant now shifts the stance that injury on the upper left side of the abdomen is attributed to the petitioner, I am mindful of the situation that at the time of occurrence it could not be said that target should be still as he is alive man and after receiving the injuries he could move either side but in the peculiar circumstances of this case when there is photographical reproduction of the events by the complainant and she has mentioned the details of each and every accused with his weapon of offence and kind of injury, and as per her own story it appears that the deceased remained quiet till he received last injury, then the prosecution has to prove its case as per its own version. Prima facie there is a conflict between the ocular account and the medical evidence which creates some sort of doubt and the benefit of every doubt how slightest, may be even at bail stage, should always be extended to the accused. This fact alone is sufficient to make out the case of the petitioner one of further inquiry.
9. All the above discussion, make out petitioner's case one of further inquiry under section 497(2), Cr.P.C. The petitioner is therefore, admitted to bail subject to his furnishing bail bond in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of trial court.