SADIQ MAHMUD KHURRAM, J.---Through the instant petition under section 497, Cr.P.C., the petitioner, namely Muhammad Younis seeks post-arrest bail in the case FIR No. 115 of 2014 dated 15.05.2014 registered at Police Station Haneef Ghori Shaheed Dajal, District Rajanpur in inspect of offences under sections 302, 148, 149 and 34, P.P. C .
2. The allegation against the petitioner, as culled from the evidentiary material produced before the Court, is that he fired with a pistol at the person of the deceased namely Muneer Ahmad hitting him on the right upper arm and left side of the abdomen.
3. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor General and perused the record with their able assistance.
4. It is discernable from the bare perusal of the FIR and the statements recorded under section 161, Cr.P.C. that as many as seven persons, including the petitioner, were attributed the roles of firing at the person of the deceased namely Muneer Ahmad. The matter does not end here as not only seven accused persons were attributed to have caused injuries with their respective weapons at the deceased but also were ascribed specific number of fires and the seas of injuries. The total number of fires attributed to the seven accused persons in the FIR is eighteen whereas, some of the accused persons were also alleged to have made numerous fires from their weapons hitting at various parts of the body of the deceased. The Medical Officer, who conducted the post-mortem examination of the dead body of the deceased, found only nine entry wounds on his person. As per the allegations contained in the FIR as well as the statements recorded under section 161, Cr.P.C., the said nine entry wounds were attributed to the accused persons as mentioned above. There is a glaring contradiction between the statements of the witnesses and the medical evidence available on record. These factors have been found by the Court to be sufficient to put it to caution regarding the veracity of the allegations levelled by ye complainant party against the petitioner. With regard to the petitioner, it is further observed that the petitioner was alleged to have fired with a pistol at the person of the deceased namely Muneer Ahmad, hitting him on the right upper arm and left side of the abdomen. Similar allegation was leveled against the co-accused of the petitioner namely Muhammad Yousaf, meaning that same injuries were attributed to two different accused.
This, prima facie, indicates that the medical evidence available on the record may not be supporting the case of the prosecution vis-a-vis the role played by the petitioner. Reliance is placed on the case of Saeed Khan v. The State and others (3011 SCMR 1392) wherein it has been held as under:- "The record also highlights a glaring contradiction between the FIR/supplementary statement and the Medico-legal Certificate issued in respect of the injured victim inasmuch as according to the FIR/supplementary statement the alleged victim had received, three firearm injuries on his right lower leg at the hands of the culprits but according to the Medico-legal Certificate issued in respect of the alleged victim there was only one fire shot received by him on his right lower leg.
These factors have been found by us to be sufficient to put us to caution regarding veracity of the allegations levelled by the complainant party against the petitioner."
Reliance is also placed on the Case of Muhammad Ramzan v. The State and others (2016 SCM R 2046) wherein it has been held as under:- "The Post-mortem Examination Report pertaining to the dead body of Humaira deceased showed that the said deceased had sustained only one firearm injury on her left thigh and, thus, the only firearm injury received by the said deceased stood attributed to two accused persons, i.e. the present petitioner and his co-accused namely Muhammad Anwar. The Post-mortem Examination Report further shows that a bullet had been recovered from the firearm injury received by the said lady and during the investigation a gun had been recovered from the petitioner's custody whereas a pistol had been recovered from Muhammad Anwar co-accused. This prima facie indicates that the medical evidence available on the record may not be supporting the case of the prosecution vis-a-vis the role played by the petitioner."
Reliance is also placed on the case of Asmatullah v. The State and others (PLD 2011 Supreme Court 178) wherein it has been held as under:-- "The Post-mortem Examination Report in respect of the deceased shows that the deceased had received only ore fire-shot and that solitary fire-shot stands attributed by the prosecution to three accused persons including respondent No.2. It is, thus, not clear at this stage as to whether any injury had been "caused by the said respondent to the deceased or not."
Reliance is also placed on the case of Liaqat Ali v. The State and others (2013 SCM R 1527) wherein it has been held as under:-- "The FIR is inconsistent qua him inasmuch as in the earlier part of the FIR, it is alleged that he was armed with an iron rod whereas in the operative part it is alleged that he was carrying a hatchet and further that he and Sajid co-accused gave hatchet blows on Ahmad Ali which landed or the left side of his back. There is, however, only one injury i.e. injury No.2 on that side.
10. The question as to who caused, injury No. 2 would remain a moot point."
Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. The co-accused of the petitioner namely Ghulam Yaseen, Rashid, Pari, Muhammad Ijaz and Muhammad Asif have already been admitted to bail by this Court. Tentatively assessing the material on record, the case of the petitioner would call for further enquiry and he also deserves his release on bail on account of identical part played by him with that of his co-accused Ghularn Yaseen, Rashid, Pari, Muhammad Ijaz and Muhammad Asif, who have been admitted to bail. This approach would be legally justified on the principle of consistency. Reliance in this behalf is placed on the cases of Shah Nawar and others v. The State and another (2008 SCM R 1436), Muhammad Azam v. The State (2008 SCM R 249), Muhammad Daud and another v. The State and another (2008 SCM R 173) and Shahid Hussain alias Multani v.
The State and others (2011 SCM R 1673).
5. It has vehemently been argued by the learned Deputy Prosecutor General appearing on behalf of the State that the petitioner had remained a "Proclaimed Offender" for about 05- years after registration of this case and, thus, he is not entitled to the concession of bail. It is a settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and not by way of grace of concession and in such a case mere absconding of the relevant accused person may not be sufficient to refuse bail to him. A reference in this respect may be made to the cases of "Muhammad Sadiq v. Sadiq and others" (PLD 1985 SC 182), "Ibrahim v.
Hayat Gul and others" (1985 SCM R 382) and "Qamar alias Mitho v. The State and others' (PLD 2012 SC 222). Different persons have been differently created by ALLAH ALMIGHTY. Sometimes a person, instead of facing the situation/crises opts to go into hiding believing, that his period of desolation and distress may go by as the time would pass along. The world is not empty of the chivalrous either who show bravery, poise or courage to confront a most tempestuous and chaotic situation without having second thought. It is merely the difference of vibes which makes he human beings behave and react peculiarly. There is, however, no denial to the fact that everyone fears the ire of the police, though in variant degrees. If one despite being innocent takes a decision out of fearfulness or anxiety to escape to a safer haven, the other one, also placed in identical situation, despite having certain reservations, may decide to bear the brunt of the upheavals in a virile way.
The factum of abscondence, may not be a deciding factor, while deciding the bail plea of an accused. The attending circumstances of the case and a cautious study thereof would be relevant for decision of a bail application on the touchstone of further inquiry as contemplated under section, 497(2), Cr.P.C. The element of abscondence must give way to the bail plea of an accused whose case categorically constitutes need for further inquiry.
6. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offence would be determined by the learned trial court after sifting be evidentiary worth of the material produced before the same. Till then, case of the petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt. The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.
1000,000/- (rupee; One Million only) with two sureties each, in the like amount to the satisfaction of learned trial court.
7. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. Additionally, a direction is issued to the learned trial court to conclude the trial of the petitioner expeditiously, preferably within a period of three months from the receipt of copy of this order. It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial then the trial court shall be at liberty to cancel the bail of the petitioner in accordance with law.