' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this petition filed in terms of section 497, Cr.P.C., Muhammad Yasin, petitioner seeks his post arrest bail in case bearing F.I.R. No.177/2011, dated 23-5- 2011, offence under sections 302, 324, 148, 149, P.P.C., registered with Police Station Faiz Abad, District Nankana Sahib, at the instance of the complainant, Muhammad Munsha.
2. At the very outset, it has been argued by the learned counsel for the petitioner that this is the fifth petition on the subject; the first petition bearing Criminal Miscellaneous No.14685/B of 2011 was dismissed as withdrawn vide order dated 18-11-2011 whereas the second petition bearing Criminal Miscellaneous No.92/B of 2012 was dismissed on merits vide order dated 2-2-2012 while the third petition bearing Criminal Miscellaneous No.11834/B of 2012 was dismissed for non-prosecution vide order dated 24-8-2012 and the fourth petition bearing Criminal Miscellaneous No.12860/B of 2012 was dismissed is not pressed vide order dated 14-12-2012, however, direction was issued to the learned trial Court to expedite the trial proceedings and complete the same preferably within a period of four months. Further contends that though the second petition bearing Criminal Miscellaneous No.92/B of 2012 was dismissed while touching upon the merits of the case vide order dated 2-2-2012 but the facts and circumstances of the case were not properly taken into consideration by the court. Also contends that the bail order is not hit by the provisions of section 369, Cr.P.C., therefore, the some can be reviewed and passed properly in accordance with law. It is argued that the ocular account is belied by the medical evidence as according to the contents of the crime report, the petitioner is assigned the role of causing fire-arm injury on the chest of the deceased, which is squarely lacking in the medical evidence as the injury was caused from the backside whereas the injury ascribed to the petitioner is exit wound. It is further argued that the complainant after elapse of more than one year and seven months filed private complaint i.e. On 4-4-2013 and not a single witness has been recorded so far. It is also argued that early conclusion of the trial is not in sight, as such, the petitioner is entitled for the concession of bail on this score alone as it is a fresh ground to file this petition. It is lastly argued that the petitioner is behind the bars since the date of his arrest i.e. 15-9-2011 and as such statutory period has already elapsed.
3. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant vehemently opposes the bail petition and submits that the petitioner is named in the crime with specific role of causing injury to the deceased. Further submits that second petition of the petitioner bearing Criminal Miscellaneous No.92/B of 2012 was dismissed on merits vide order dated 2-2-2012, therefore, the petitioner is not entitled to the concession of bail. Also submits that subsequently, the complainant has filed private complaint against the accused.
4. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor-General as well as learned counsel for the complainant and perused the available record.
5. There is no denial to this fact that the petitioner, is named in the crime report with specific allegation of causing firearm injury on the chest of the deceased, but it is worth-mentioning here that as per postmortem report, the injury ascribed to the petitioner is injury No.1, which is reproduced as under:-- "Exit wound of size 2 x 1 cm on the anterior of chest in the midline about 14 cm above umbilicus with margins everted"
' The same does not find corroboration, meaning thereby that there is conflict in the ocular and medical account. Such aspect of the case was skipped from the notice of the learned Single Bench while rendering order dated 2-2-2012, in second petition of the petitioner bearing Criminal Miscellaneous No.92/B of 2012. Such circumstances make the case against the petitioner one of further inquiry falling within the ambit of section 497(2), Cr.P.C. Reliance in this regard is placed on the case of "Syed Abdul Baqi Shah v. The State" (1997 SCMR 32), wherein the august Supreme Court of Pakistan has held as under:-- "----S. 497---Penal Code (XLV of 1860), Ss. 302/324, 147, 148, 149---Constitution of Pakistan (1973), Art. 185(3)---Bail, grant of---Delay in the trial of the case having had partly occasioned due to adjournments secured by counsel of accused benefit of third proviso of S. 497(1), Cr.P.C. Could not be extended to him---Tentative assessment of ocular and medical evidence disclosed a conflict between the two, benefit of which could be given to accused at bail stage---Petition for leave to appeal was converted into appeal in circumstances and the accused was released on bail accordingly".
' Similar view was affirmed by the august Supreme Court of Pakistan in the case of "Saeed Khan v.
The State and another" (2011 SCMR 1392), wherein it has been held as under:-- "----Contradiction in medical and ocular evidence---Record highlighted glaring contradictions between F.I.R./supplementary statement and medico legal certificate issued in respect of injured victim---According to F.I.R., supplementary statement alleged, victim had received three firearm injuries on his right lower leg at the hands of culprits but according to medico legal certificate issued in respect of alleged victim there was only one fire shot received by him on his right lower leg---Such factors were sufficient to put caution regarding veracity of allegations levelled by complainant party against accused".
' Though the recovery of weapon of offence has been effected from the petitioner but the report of Forensic Science Laboratory is missing in this regard. Apart from this, the complainant after elapse of one year and seven months has filed a private complainant i,e. On 4-4-2013 and not a single witness has been recorded so far. The early conclusion of trial of the instant case is not in sight.
Even otherwise, the complainant cannot be given a license to choose the time of prosecution against the accused according to his own choice. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Barkhurdar v. Liaqat Ali and 2 others (PLD 1977 Supreme Court 434); wherein it was held as under:-- "Ss. 497 & 498---Bail---Delay---Murder case---Delay per se in all cases of murder regardless of its responsibility or other circumstances---No justification for grant of bail---Delay amounting to abuse of process of Court---Such delay alone, held, justifies grant of bail."
' As far as the contention of the learned Deputy Prosecutor-General that earlier petition of the petitioner was dismissed while touching upon the merits of the case is concerned, bail application is not hit by the provisions of section 369, Cr.P.C. And as such, any finding is not conclusive in nature. This Court has ample power to decide the matter in the safe administration of justice, whenever it comes in the knowledge of this Court that gross injustice has been done to any person, who is behind the bars for an indefinite period. Reliance in this regard is placed upon the dictum of law laid down by the august Supreme Court of Pakistan in the case of Gulzar Hussain Shah v.
Ghulam Murtaza and 4 others (PLD 1970 Supreme Court 335), wherein it has been held that:-- "Criminal Procedure Code (V of 1898), Ss. 369, 498 & 561-A---Section 369 does not control S. 498--- Section 561-A can be invoked in suitable cases.
' Section 369 of the Cr.P.C. Does not control section 498 and in suitable cases section 561-A of the Criminal Procedure Code can be invoked. In the first place, an order passed under section 498, Cr.P.C. Is not a judgment within the meaning of section 369, Cr.P.C. Moreover, section 369 the Criminal Procedure Code is in the Chapter relating to original trial and unless it is specifically applied to other proceedings under the Criminal Procedure Code, it cannot be said to have any application to other proceedings."
' It has further been held by the august Supreme Court of Pakistan in the case of Ali Sheharyar v.
The State (2008 SCMR 1448) that:- "----Ss. 497 & 369---Bail---Fresh bail application, filing of--- Fresh bail application can be moved at a subsequent stage on the grounds which were not available at the time of filing of earlier bail application and order passed on the subsequent bail application would not amount to review of the earlier order on the bail application as S. 369, Cr.P.C. Did not apply to such orders."
' The august Supreme Court of Pakistan has also held in the case of "Amir v. The State" (PLD 1972 Supreme Court 277) that:-- ....Penal Code (XLV of 1860), S. 302 and Criminal Procedure Code (V of 1898), S. 498---Bail---For purposes of bail, law not to arising, must go to accused---Murder---Alleged eye-witness (lodging of F.I.R.) stating before committing Magistrate that accused fired his gun after deceased had fired at accused's companion---Assertion by defence that statement of other eyewitnesses also in same strain and, therefore, possibility of self-defence not ruled out---High Court, however, without examining evidence of other eye-witnesses, not considering this to be good ground and refusing bail---Petition for Special Leave to Appeal to Supreme Court---Accused directed by Supreme Court to renew his application before Single Judge and High Court advised to consider whole case for purposes of law on data available."
' The august Supreme Court of Pakistan has also held in the case of Riasat Ali and another v. The State (PLD 1977 Supreme Court 480) that:-- "...S.498---Bail---accused, unless found guilty by competent Court---Presumed to be innocent--- Holding person in custody for nearly four years without any prospect of even commencing trial--- Strongly militates against such concept and amounts to abuse of process of Court---Petitioners already in custody for one year and nine months and on reasonable calculation likely to remain in custody for another two or two and a half years before their trial could be expected to commence, thus making a period of nearly four years in custody without trial---Petitioners allowed to be released on bail:"
' It has also been held in the case of Saleem Akhtar v. The State (PLD 1980 Lahore 127) that:-- ' S. 339 read with Ss. 497 & 498---Earlier order rejecting bail application---No bar to a second bail application even in absence of fresh material---Provisions S. 369, Cr.P.C., held, not applicable to orders disposing of bail applications under Ss .497 & 498, Cr . P. C . ---Criminal Procedure Code (V of 1898), S.369."
As far as expiry of statutory period is concerned, it is an admitted fact that the petitioner was taken into custody on 15-9-2011 and he is behind the bars for more than two years without recording of single prosecution witness, as such, the statutory period has already expired. In such circumstances, in view of recent amendment made in section 497, Cr.P.C, vide Act VIII/2011 dated 21-4-2011, the petitioner is also entitled to the relief prayed for. In this regard, this Court cannot loose sight that the complainant of this case after elapse of one year and seven months has filed private complaint. Law cannot be stretched in favour of the prosecution to lodge prosecution at its own whims according to the time which suits it. Liberty of person is his precious right, which has been guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 and no one can be kept behind the bars for an indefinite period on the basis of bald allegations.
6. For the foregoing reasons, this Court is persuaded to accept his petition. Resultantly, the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.100,000 with one surety in the like amount to the satisfaction of learned trial Court.