' MUHAMMAD IQBAL KALHORO, J.--- The applicant Muhammad Ameen after dismissal of his bail application by the trial Court vide impugned order dated 25-10-2013 in Crime No.146 of 2013 Police Station Kazi Ahmed under sections 324, 337-A(ii), H(2), F(i), 147, 148, 504, P.P.C. Has preferred the instant bail application.
2. The concise resume of the facts germane to the prosecution case is that complainant registered the instant F.I.R. On 17-7-2013 at 2300 hours alleging therein that he was Hari of Rais Muhammad Hanif. There was an Electric Transformer installed on the lands of Hanif Chandio. Accused Ismail Chandio and his relatives would tamper with the said Transformer as a result of which the electric appliances of the complainant 'party got fused. The complainant party tried to stop the accused party but they turned the deaf ear to the requests of complainant party. On the factual day viz. 17- 7-2013 at about 11-00 a.m. The complainant along with Ghulam Mustafa and Allah Bux was present in the lands of Hanif Chandio where accused Ismail armed with Hatchet, Amin Chandio holding a Hatchet, Farooque Chandio armed with Hatchet, Idrees Chandio, Sanaullah, Sikandar, Miskeen and Haji, all possessing Pistols and Qadir Bux holding a Lathi came there who started removing links of the Electric Transformer. An altercation is alleged to have taken place between the accused and the complainant party and then accused Muhammad Ismail is alleged to have caused injury on the head of Ahmed, accused Amin is alleged to have caused injury to Muhammad on his head, who after receiving the injuries fell down. It is further alleged that accused Amin also tried to injure the complainant but failed and then accused Miskeen is also alleged to have fired from his Pistol on the complainant but the same could not hit the complainant party. After making aerial firing the accused are stated to have decamped from the spot. The complainant brought the injured at Government Hospital, Qazi Ahmed where leaving the injured there for the purpose of treatment appeared at police station along with a final medical certificate and registered the F.I.R. Ante.
During investigation applicant/accused was arrested on 22-7-2013. As a result whereof, he moved the bail application before the trial Court which was dismissed vide impugned order.
3. Learned counsel appearing on behalf of the applicant has argued that as per medical certificate the injury allegedly sustained by the injured Muhammad falls within the ambit of section 337-A(ii), P.P.C. Which is punishable for five years hence, the case of the applicant does not come within prohibitory clause under section 497(1), Cr.P.C. Per learned counsel section 324, P.P.C. Is not applicable to the case of present applicant/accused as he is not alleged to have caused any other injury, except the alleged injury to P.W. Muhammad, to any of the member of complainant party. He stated that the role attributed to the present applicant/accused is at par with the role assigned to the co-accused Ismail who is alleged to have caused injury to the P.W. Ahmed which falls within the mischief of section 337-A (ii), P.P.C. According to him, since the co-accused Ismail in the present case is on bail, the rule of consistency in the case of applicant /accused is applicable. He further argued that since the arrest of applicant/accused viz. 22-7-2013, no progress has been made in the case which infringes the right of the applicant/accused to the expeditious trial guaranteed under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. He further argued that there is contradiction between the oral evidence and the medical evidence as according to him, in the F.I.R. The allegations against the applicant are that he has caused sharp side hatchet blow to the injured Muhammad whereas the Medico-Legal Certificate depicts that weapon used for causing injury to the Muhammad was hard and blunt. He also argued that the medical Certificate issued by the Medico-Legal Officer was challenged by the accused party- before the Medical Board, which, due to non-appearance of injured, has been put in abeyance. He lastly in support of his arguments relied upon the case laws reported in 2009 YLR 2299, 2009 M LD 21, 1998 SCM R 500, 2004 SCM R 89 and 2012 YLR 705.
4. While rebutting him, the counsel for the complainant argued that as far as the medical certificate being put in abeyance for non-appearance of the injured is concerned, the injured are ready to appear before the medical board for the purpose of examination as required and their non-appearance before the Medical Board was due to non-service upon them of any notice issued for appearance. On the merits of the case, he argued that applicant/accused has been assigned specific role of causing injury on the vital part of P.W. Muhammad. Per learned counsel, mere fact that offence does not fall within the prohibitory clause under section 497(1), Cr.P.C. Would not mean that applicant/accused is saddled with a bailable offence or he could be granted bail on such ground without attending to the circumstances of the case. He in support of his arguments had relied upon 2001 YLR 2921, 2004 YLR 400, 2003 SCM R 573 and 2008 SCM R 807.
5. Learned A.P.G. Sindh appearing on behalf of the State supported the arguments canvassed by the counsel for the complainant and further argued that an overall impact of the offence has to be taken into consideration while deciding the bail plea of the accused on the basis of tentative assessm ent of the material placed before the Court. He, however, could not controvert the fact that co-accused Ismail, who is alleged to have caused similar kind of injury to the PW Ahmed, is on bail in the present case and such fact is duly endorsed in the final report under section 173, Cr.P.C.
6. I have heard the parties' counsel as well as learned Assistant Prosecutor General, Sindh and have also perused the record so made available before me. There is no cavil to the proposition that mere fact that an offence does not fall within prohibitory clause of section 497(1), Cr.P.C. Does not mean that it has become a bailable offence. The discretion to grant or refuse bail to an accused involved in an offence not falling within prohibitory clause lies with the Court, which has to decide such question by tentatively probing the material made available to it. In appropriate cases however, the discretion can be exercised in favour of the accused where sufficient grounds exist for further inquiry into the guilt of the accused. In the present case, as per allegations against the accused mentioned in the F.I.R., he caused sharp side hatchet blow to P.W. Muhammad, whereas in the Medical Certificate the injury to P.W. Muhammad is said to have been caused with hard and blunt side weapon. Ex facie such discrepancy between the medical and oral account of the case appears to be inexplicable and would bring the case against the applicant/accused within the ambit of further inquiry. The applicant/accused is not alleged to have repeated the blow to P.W.
Injured Muhammad or any of the P.Ws. Present at the spot which prima facie calls for further inquiry as far as the applicability of section 324, P.P.C. To the case of present accused is concerned and in the given circumstances can only be established by the prosecution at the time of trial. Admittedly, the present applicant's case is on the same footing with that of co-accused Ismail, who was granted bail by the trial Court, by virtue of that, the rule of consistency also appears to be applicable in the present case. The injury he is alleged to have caused to the P.W. Muhammad is punishable for five years and does not fall within prohibitory clause of section 497(1), Cr.P.C., in such cases the grant of bail to the accused is an established rule unless some extra-ordinary circumstances are available to justify an exception.
7. I have had the privilege of going through the case laws relied upon by the learned counsel for the complainant.
8. In a case of Afzal Ahmed v. The State' reported in 2003 SCM R 573, the bail was refused to the applicant as he was apprehended with 600 grams of Heroin. He was considered by the honourable Supreme Court to be spreading a deadly poison i.e. Narcotics in the society.
9. In a case of Haji Muhammad Nazeer v. The State' reported in 2008 SCM R 807, the honourable Supreme Court declined the bail to the applicant on the basis of exceptional and extra-ordinary circumstances prevailing in that case against the accused as allegations against him were that he with the help and connivance of law enforcing agencies violated/negated to the rule of law by forcibly taking over the possession of the property from the complainant during course whereof the buildings/Kothas etc. Owned by them were also demolished and also humiliated the complainant by causing injuries on some of their party men by launching attack with good number of accused persons to accomplish the object being duly armed with deadly weapons.
10. With due respect to the dictums laid down by the honourable Supreme Court in the above cases, I am of the view that the circumstances prevalent in the present case are quite different in view of foregoing discussion and the fact the accused is languishing in Jail since 22-7-2013 without any progress in the trial and in case ultimately he is acquitted by the trial Court, there would be no compensation for him for the period he has remained in the Jail.
11. The remaining case laws, relied upon by the learned counsel for the complainant are based on different facts and circumstances, which therefore, are not applicable to the peculiar facts of the present case.
12. I find it pertinent to mention here that grant of bail to an accused does not mean his acquittal but it is only a change of custody held by the government agencies on behalf of the Court to the person who stands surety for the accused and takes responsibility to produce him whenever and wherever the accused is required to be produced.
13. In the present case, apparently there are no extra-ordinary circumstances justifying refusal to exercise discretion in favour of the accused. Consequently, I am of the opinion that the applicant/accused is entitled to the concession of bail. Accordingly, he is admitted on bail, subject to his furnishing a solvent surety in the sum of Rs.50,000 (Rupees fifty thousand) and PR Bond in the like amount, to the satisfaction of trial Court.
14. The observations made hereinabove, are tentative in nature and would not affect the case of either party.