Through this petition, Zeeshan Akbar petitioner seeks post arrest bail in case FIR No.515/2014 dated 17.08.2014 registered under Sections 302, 324, 148, 149, 109, 337-F(iii), 337-F(v), PPC at Police Station Kot Momin District Sargodha.
2. Briefly, the allegation against the petitioner, as per FIR, is that he while armed with rifle 44-bore fired the shot which hit on the left side of thigh joint of Muhammad Altaf injured. The said injury comes within the ambit of section 337-F(v), PPC.
3. Learned counsel for the petitioner, mainly relied on the bail granting order in favour of Muhammad Usman Zafar, co-accused of the petitioner by this Court in Crl.Misc.No.8160-B/2015 vide order dated 05.10.2015 and argued that only one injury is attributed to the petitioner in the FIR whereas the allegation against the co-accused Muhammad Usman Zafar is that he while armed with Kalashnikov fired a brust upon complainant's brother, which hit him on front side of his forehead, eye and head, therefore, on the principle of consistency, the petitioner is also entitled to be released on bail. Further submits that as a result of investigation, presence of the petitioner with 'soti' at the crime scene was found and only "soti" has been recovered, therefore, the petitioner is entitled to the concession of bail.
4. On the other hand, the learned DDPP as well as learned counsel for the complainant have vehemently opposed this bail application on the grounds that the petitioner is specifically named in the FIR with a role of causing injury on the person of injured Muhammad Altaf, hence he is not entered to the concession of bail.
5. Heard. Record perused.
6. I have given thoughtful consideration to the contents of the FIR where it has been clearly mentioned that Muhammad Altaf received injury on the left side of thigh joint, whereas medico legal report No.129/2014 of Muhammad Altaf injured reflect as under: A lacerated wound of 2 cm X 2 cm on the front of left hip inverted margins. This is the wound of entry. The wound is skin deep, muscle deep. There is no blackening and bruising.
On the dot, it is visibly meant that there is a clear contradiction in medical and ocular evidence, hence, reliance can be placed on the cases of Pir Bux versus The State (2012 SCMR 1955) and Bagh Ali's case (PLD 1973 SC 321).
7. I have also considered the case from another angle that as per the contents of the FIR, the injury, which has been saddled on the petitioner, falls within the ambit of "Ghair Jaifah Hashimah" and the sentence provided for that injury is five years which does not fall within the prohibitory clause of section 497, Criminal Procedure Code, 1898. In such like cases, the grant of bail is rule and refusal of the same is an exception as laid down in Tariq Bashir's case (PLD 1995 SC 34).
8. It is also worth mentioning here that only one injury is attributed to the petitioner on the person of injured as per FIR whereas the allegation against the co-accused Muhammad Usman Zafar, who is already on bail, is that he while armed with Kalashnikov fired a brust upon the deceased, complainant's brother, which hit him on front side of his forehead, eye and head and it is admitted at all hands that the petitioner had not caused any injury to the deceased at all, therefore, on the principle of consistency, the petitioner is entitled to be given concession of bail. Guidance is sought from Faqir Hussain alias Bali versus The State and others (2014 SCMR 1502) and Yaroo versus The State (2004 SCMR 864).
9. In the present case, the challan has been submitted on 05.08.2015 and the case is in progress, however, the pendency of the trial is not hurdle in the way of the granting of the bail if the case of the petitioner falls within the ambit of further inquiry. The petitioner is behind the rod since 19.09.2014 and he cannot be kept behind the bars for an indefinite period, as it would not serve any useful purpose. Reliance can be placed on the cases of Syed Khalid Hussain Shah versus The State and another (2014 SCMR 12) and Imtiaz Ahmed versus The State (PLD 2009 Lahore 14).
10. It has also been noted in this case that two successive investigations were conducted, case one on the application of the accused and the other on the application of the complainant, and the result of both the investigations are different makeing the case of the petitioner of further inquiry. I have also observed that the prosecution burdened the petitioner with fire arm weapons and on the other side the investigation officer during the course of investigation has recovered the stick "soti" which clearly is contradicted with the ocular evidence of the prosecution. The recovery of the "soti" even otherwise is not connected the accused/petitioner with the commission of alleged offence.
Hence the case of the petitioner falls within the ambit of subsection (2) of Section 497, Criminal Procedure Code, 1898. Reliance can be placed on the case of Abid Ali alias Ali versus The State (2011 SCMR 161) and Muhammad Ismail versus Muhammad Rafique and another (PLD 1989 SC 585) wherein it has been held by the Hon'ble Court of Pakistan that when otherwise case against the accused is covered under subsection (2) of the section 497, Criminal Procedure Code, 1898 he is entitled to the concession of bail as a matter of right.
11. It is also worth mentioning that Muhammad Usman Zafar, co-accused of the petitioner has already been enlarged on bail vide order dated 05.10.2015 passed by this Court in Crl.Misc.No.8160- B/2015.
12. In criminal jurisprudence, every case has its own peculiar facts and no hard and fast rule can be applied on each and every case. In the present case, when there was an unambiguous and specific allegation of hitting fire and during investigation only soti was recovered, such fact must be a consideration to extend the benefit of doubt to the petitioner even at bail stage. The effect of grant of bail is only the change of custody from judicial lock up to that of the hands of sureties and in this case also I allow this change of custody of the petitioner from judicial lock up to the hands of sureties by allowing this petition subject to his furnishing bail bonds in the sum of Rs.2,00,000/- each with two sureties each in the like amount to the satisfaction of learned trial court.
The observations made above are tentative in nature and will have no effect upon any proceedings during the trial.