Through the instant petition, the petitioner seeks bail after arrest in case F.I.R. No. 29/2021, dated 28.01.2021, offence under sections 302, 324, 341, 447, 511, 109, 506(ii), 148, 149 P.P.C., registered at Police Station Bani Gala, Islamabad.
2. It is alleged that the petitioner alongwith his co-accused attacked on the complainant party , made firing with different weapons, consequently , Ch. Gulbaz succumbed to injuries and one Naseer Hussain Shah got injured, hence the instant FIR.
3. Learned counsel for the petitioner / accused contends that the instant FIR has been lodged against the present petitioner on the basis of malicious and ulterior motives to receive unlawfu l benefits; there are material contradictions between Medico Legal Report and the ocular evidence; the indictme nts as ascribed to the petitioner are absolutely against the facts as well as based on some imbedded malafide on the part of Complainant' s side may have been whispered by anyone having ill motive towards the petitioner , otherwise the petitioner has neither any rivalry against the victim nor has any grudge of any manifestation. He has further contended that there was no occasion for the petitioner to indulge in the stated occurrence; case of the petitioner falls within the ambit of further inquiry; the petitioner / accused is previously non-convict. Hence he has prayed for grant of bail after arrest.
4. On the other hand, learned counsel for the complainant as well as State Counsel has controverted the contentions raised on behalf of the petitioner / accused and stated that the petitioner/accused is specifically nominated in the FIR; recovery of Kalashnikov has been effected from him; there is sufficient evidence available against the petitioner/accused; offence falls under the prohibitory clause of Sectio n 497 Cr.P.C, hence prayed for dismissal of bail after arrest.
5. I have heard the arguments advanced by learned counsel for the petitioner / accused, learned counsel for the complainant assisted by learned State Counsel and perused the record with their able assistance.
6. Complainant has nominated about 15 persons in the FIR and also mentioned that 80/90 unknown persons were also accompanying the accused nominated in the FIR.
7. After registration of the case, the comp lainant has got recorded his statement U/s 164 Cr.P.C that Aleem Khan accused nominated in the FIR is not involved in this case, hence he was discharged by the local police.
08. As far as 80/90 unknown persons are concerned, the police arrested 16 labourers / low paid employees of the accused party on 31.01.2021, U/s 54 Cr.P.C, sent them to judicial lockup for conducting the identification parade by complainant and eye-witnesses; only on one occasion out of five eye-witnesses, two went for the purpose of identification parade and identified three persons/accused. Thereafter , many opportunities were provided to the complainant party for joining the identification parade in order to identify the accused; identification parade was arranged in Adyala Jail, Rawalpindi; the Magistrate, I.O and other jail authorities were present on many occasions but the complainant party did not go to Adyala Jail for joining the identification parade by making lame excuses.
Police has also not taken any action against the witnesses/complainant party for not joining the identification parade and not complying with the instructions of Investigating Officer; said poor persons filed a writ petition in this Court bearing No. 887 of 2021 titled as "Islamabad Model Town vs. The State", local SP, SDPO and SHO etc. were called by this court and 13 poor/inn ocent persons were discharged by the local police on the intervention of this Court on 18.03.2021 i.e. after about more than one and half month; this conduct of complainant party/witnesses is suf ficient to prove their malafide.
9. According to the prosecution story , role attributed to the petitioner/accused is that he made firing with Kalashnikov , which hit at the left side of temporal region of Naseer Hussain Shah due to which he got injured.
10. Medico Legal Report of injured Naseer Hussain Shah issued by Federal Government Services Hospital, Islamabad shows that the kind of weapon used was "Blunt" and it is further mentioned that "the possibility of fabrication cannot be ruled out."
11. Medical Board of the senior doctors was also constituted vide order dated 01.04.2021 passed by the District Magistrate, Islamabad; the opinion of the Medical Board is as under: "We endorsed the nature of wound & fracture of parietal bone with associated brain injury hematoma evident by C.T. Scan report and operation but the caused by a bullet is still to be answered by some forensic expert as the speed of bullet that is causing the fracture of bone but could not exit from/or move from the scalp skin out."
In Firearms Report dated 28.06.2021, the following opinion has been given: "The bullet B-852 is fired from 7.62x39mm caliber (Kalashinkov) ammunition.
Photograph and X-ray of injured person reveals that either the bullet injury is fabricated or the bullet strike after passing through some intermediate target from long range.
Note: Report is subject to the item(s) examined by the experts."
12. It is evident from the above mentioned three expert reports that there are material contradictions between the Medico Legal Report and the ocular evidence.
13. The occurrence took place on 28.01.2021, whereas, Kalashnikov has been recovered on the pointation of petitioner/accused from his house on 10.04.2021 i.e. after about more than 02 months of the occurrence.
14. It is held by the Hon'ble Supreme Court of Pakistan in a case titled as "Muhammad Hanif vs. Manzoor and 2 others (NLR 1981 SC 367) that: "It is true that at the stage of deciding the question of bail, the court does not enter upon a detailed appreciation and examination of evidence, but it is also clear that the question cannot be decided in vacuum and the court has to look at the material available when the bail is applied for. Now, in the present case, result of medico-legal examination of the deceased was available and the learned Judge of High Court could not have refused to look at it."
The same law has been laid down by the Hon'ble Supreme Court of Pakistan in a The State through AG-KPK and another ( 2017 SCMR 538 ) that: "When the medical evidences is in conflict with the ocular account then, benefit of doubt at bail stage must go to the accused."
Reliance is also placed on cases reported as "Khan Mir v. Amal Sherin (1989 SCMR 1987 )" and "Syed Khalid Hussain Shah v . The State ( 2014 SCMR 12 )".
15. On the pointation of belated recovery of the weapon of offence from accused, it has been held by the Hon'ble Supreme Court of Pakistan in case (2014 SCMR 1349 ) "Malik Muhammad Aslam Vs. The State and others" that: "In this connection we have noticed that the occurrence in this case had taken place on 16.10.2012, i.e. exactly three months ago, during whic h period any blood available on the petitioner 's hatchet must have disintegrated leaving the proposed recovery to be of little legal consequence. In this view of the matter we have not felt persuaded to deprive the petitioner of his liberty merely to facilitate the investigating officer to go through a formality is not likely to serve any beneficial purpose for the prosecution. In this backdrop the intended arrest of the petitioner by the local police has not been found by us to be above board."
Reliance is also placed on the cases (2018 PCr.LJ 928) "Noor Muhammad Vs. The State and another", (2016 MLD 862) "Imran Rasheed Vs. The State", and (2018 YLR 740) "Muhammad Mubashar and 3 others Vs. The State and another".
16. It is well settled principle of law that while deciding the bail application, before recording of evidence in the trial Court, only tentative assessment is to be made by the Court and it is not permissib le to go into details of evidence in one way or the other that might prejudice the case of either party . In this regard reliance is placed upon PLD 1994 Supreme Court 65 , PLD 1994 Supreme Court 88 , 2021 SCMR 1 11 and 2020 SCMR 937 .
17. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity . The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reliance is placed on a case reported as "Manzoor and 4 others Vs. The State" ( PLD 1972 SC 81 )".
18. It is held by the Hon'ble Supreme Court in a case titled as "Zaigham Ashraf Vs. The State and others" (2016 SCMR 18 ) that: "To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however , this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Crimin al Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in Jail without just cause and reasonable ground".
19. Investigation in the case has been completed and the petitioner/accused is no more required for the purpose of investigation. He is previously non-convict and is behind the bars for the last more than 05 months. Trial of the petitioner / accused has not seen any fruitful progress as yet, therefore, his further incarceration in jail would not serve any purpose.
20. A tentative assessment of record shows that present petitioner has made out a case of further inquiry .
21. In view of above, instant petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs. 500,000/- (Five Hundred Thousand only) with two suretie s in the like amount each to the satisfaction of learned trial Court.
22. Needless to mention that, this is a tentative assessment which shall not af fect the trial of case in any manner . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.