Noor Zaman, the accused-petitioner seeks post-arrest bail in case FIR No.90-2015 dated 06.05.2015, registered under Sections 337/A(ii), F(v), L(ii), 148/149 PPC subsequently add Section 302 PPC, at Police Station Waryam, District Jhang.
2. The brief facts of the case are that on 04.05.2015 at about 7.00 am petitioner along with his co- accused while armed with sotas formed unlawful assembly in furtherance of their common object, attacked upon the complainant party, whereas petitioner gave a sota blow hitting on the arm of Ghulam Abbas, complainant and also gave another sota blow hitting on the bladder pubic area of Ansar Abbas, deceased, whereas other co-accused also caused multiple injuries on the different parts of bodies of said Ansar Abbas as well as Ghulam Abbas, complainant.
3. Arguments heard and record.
4. Allegedly, the allegation against the petitioner as per FIR is that he while armed with sota gave blow on inguinal region of Ansar Abbas, who was medically examined on the same day of occurrence and he only complained regarding the pain in his public region. He died on 07.05.2015 and at that time Doctor did not observe any injury in the inguinal region of deceased.
Subsequently, post mortem examination of the deceased was conducted, but according to which, said injury is not available. The said allegation for causing injury to the deceased on his bladder/public area is falsified by the post mortem report. Hence, the medical evidence, prima- facie, does not support the prosecution version. In this regard reliance can be placed in case reported as "Muhammad Jahangir. Vs. Kala Khan and another" (2004 P.Cr.L.J. 1843) and "Muhammad Shafi and others" Vs. The State" (1983 P.Cr.L.J. 2281).
5. As far as other allegation levelled against the petitioner in the FIR that he while armed sota gave blow hitting on the arm of Ghulam Abbas, the complainant. Doctor observed the fracture of the arm of complainant and declared the said injury as Ghair Jaifa Hashimah, falling under Section 337/F(v) PPC and maximum punishment thereof is five years, which does not fall within prohibitory clause of Section 497 Cr.P.C. Reliance can be placed in this regard in case reported as "Younas. Vs. The State" (2004 P.Cr.L.J. 191), wherein it has been held that only one injury caused to injured PW attributed to accused, who had not touched the deceased as is evident from post mortem examination of the deceased.
6. Even other-wise, injury allegedly inflicted by the petitioner, prima-facie, does not appear to have directly & indirectly contributed to the immediate cause of death of the deceased. Reliance is placed on "Shah Nawaz and others. Vs. The State and another" (2008 SCM R 1436). "The material on record not showing as to which of accused caused fatal injury leaving room for consideration regarding the common object of other accused to kill the deceased." During the occurrence, present petitioner and his co-accused Sher Zaman were also injured, which fact has been suppressed by the prosecution at the time of lodging the FIR. Reliance can be placed in this regard in case reported as "Muhammad Imran. Vs. The State" (2003 Y.L.R. 1735). Which party is aggressor and which party is aggressed upon, will be seen by learned trial Court after recording evidence of the parties.
7. According to the learned counsel for the complainant, the petitioner is also involved in so many cases of similar nature, but without conviction, therefore, involvement of the petitioner in cases of similar nature is no ground to refuse the bail without any conviction.
8. The petitioner has been languishing in jail since 03.06.2015. His further incarceration for indefinite period without conclusion of the trial would not serve any useful purpose to the prosecution. Even other-wise, the petitioner has successfully made out a case of further inquiry which also falls within the ambit of Section (2) of Section 497 Cr.P.C.
Resultantly, this petition is accepted and the petitioner is admitted to bail in the sum of Rs.2,00,000/- (two lacs only) with one surety in the like amount to the satisfaction of learned trial Court. The observations made in this petition are in tentative nature and shall not prejudice case either of the parties.