The petitioner seeks his post arrest bail in a case registered against him vide FIR No, 3,13 dated 23.07.2009 under Sections 302, 324, 148, 149, PPC at Police Station Kassoki District Hafiz Abad.
2. The learned counsel for the petitioner contended that in this unfortunate occurrence two persons. namely Imdad Hussain and Muhammad Arshad lost their lives contended that allegedly the petitioner was armed with rifle 44 bore 80 he caused fire-arm injury on the left arm. of Zaigham Abbas. He contended that there are three injuries attributed to different persons on the left arm of Zaigham Abbas, one to Allah Ditta, the other to the petitioner and the 3rd to Khyzar Hayat. He contended that MLR of Zaigham Abbas shows that on the left arm he had received only one fire- arm injury and it is yet to be determined that out of three persons, as to who caused the said injury.
Further contended that the co-accused faced the trial and Allah Ditta to whom fire was attributed on the left arm of Zaigham Abbas had been acquitted while Khyzer Hayat who allegedly caused the injury on the left arm has-been convicted and thus two persons cannot be convicted for the same injury. He further contended that absconsion of the petitioner was not willful and even otherwise, .the absconsion itself is no ground to withhold the bail. Further contended that during the trial of the co-accused, the said injured Zaigham Abbas appeared as PW-12 and though he nominated the petitioner in his examination-in-chief but did not attribute any role to the petitioner that the petitioner caused him any injury with his fire-arm and thus contended that looking from whatever angle the case of the petitioner requires further inquiry.
3. On the other hand, the learned counsel for the complainant as well as learned DPG opposed the petition and contended that the petitioner is nominated with specific role of causing injury to injured Zaigham Abbas on the left arm and during the investigation, out of 17 accused, 14 were declared innocent while during the investigation Alamgir, Khyzar Hayat and petitioner were found guilty. They further contended that the petitioner remained absconder for three years and loosed his ordinary right of bail and that the decision of the learned trial Court during the trial of the co- accused was mainly based on the police investigation.
4. Arguments heard. Record perused.
5. As far as the merits of case are concerned; it is admitted that the petitioner had caused no injury to both the deceased namely Imdad Hussain and Muhammad Arshad. Even there is no allegation of repetition of fire against the petitioner. Only single fire is attributed to him, which landed on the left arm of injured PW Zaigham Abbas. The record shows that three persons were attributed the role of firing on the left arm of said Zaigham Abbas namely Allah Ditta who had been acquitted, the petitioner and Khyzer Hayat who had been convicted. The MLR of Zaigham Abbas shows that there were multiple fire-arm injuries on the front of outer part of left upper arm. It is to be noted that the learned counsel for the petitioner had placed on record the judgment of the learned trial Court by which the co-accused were tried and the said injured Zaigham Abbas appeared during the trial as PW-12 but he, in his examination-in-chief, did not utter any word against the petitioner that he fired upon him or his fire hit him on his left arm. As far as the merits of the case are concerned, the case of the petitioner definitely requires further inquiry. There is no denial of the fact that the petitioner was arrested on 16.07.2012 and allegedly the rifle 44 bore was recovered from him but the rifle and the empties recovered from the spot were not got compared, so this aspect also makes the case of the petitioner as that of further inquiry. The only point which goes against the petitioner is absconsion. It is not denied that in the case of absconsion, the person looses his ordinary right of bail but it also cannot be denied that if the petitioner is found entitled for his bail on merits, then bail cannot be refused merely on the ground of absconsion. In the present case, the situation is the same. Though on merits,, the case of the petitioner definitely requires further inquiry and so merely on the ground of absconsion, he cannot be kept behind the bars and the bail cannot be refused on this ground alone. This being so, this petition is allowed and the petitioner Umar Draz @ Umer Hayat is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- (Rupees two lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.