ABDUL HAMEED BALOCH, J. Through this application the applicant seeks bail in FIR No. 18 of 2021 lodged with Police Station Saddar Sinjavi, under sections 324, 147, 148, 149 of the Pakistan Penal Code, 1860, ("P:P.C.").
Earlier the bail application filed by the applicant before the Sessions Judge, Loralai, was dismissed vide order dated 12.02.2022.
2. Brief facts of the case are that on 16.09.2021 complainant Haji Abdul Majeed lodged the referred FIR, alleging therein that on the previous day at 9 O'clock a girl came to his house and told her name as Bibi Hasina daughter of Baz Muhammad. On the same night Baz Muhammad and Khair Muhammad also came and asked for the girl. His brother Abdul Hameed asked them to send two women to take the girl. His brother informed notables of the area Malik Ayaz and Malik Nawaz, who came to his house and asked from Bibi Hasina but she was not ready to go with them. On 16.09.2021 when his brother went to graveyards for attending a funeral ceremony, meanwhile at about 1:00 p.m. six persons namely Baz Muhammad, Lal Muhammad, Eid Muhammad, Muhammad Alam, Momin and Noor Muhammad came to his house in two cars and a motorcycle, Lal Muhammad, Eid Gul, Noor Muhammad and Momin were armed with Kalashnikov, while Baz Muhammad and Muhammad Alam were armed with pistols. Lal Muhammad and Eid Gul made firing on his nephew Muhammad Tariq, while Noor Muhammad and Momin made firing on his son Najibullah, due which they both received severe injuries. Baz Muhammad and Muhammad Alam made firing upon him but luckily he remained unhurt. Accused persons after committing assault made good their escape and left their car on the spot.
3. Learned counsel for applicant contended that the FIR has been registered with delay of more than six hours without explanation. The case of prosecution is full of contradiction which create doubt. The benefit of doubt goes to accused. There is contradiction in time of registration of FIR and MLC. The prosecution failed to collect incriminating material against the accused
4. Conversely learned State counsel strongly opposed the contention of counsel of applicant stated that the accused is nominated in the FIR with specific role of firing in injured Najeeb and on pointation of accused the alleged weapon has been recovered.
5. Heard. Perused the record with the assistance of learned counsel for the applicant and learned State counsel. The perusal of record reveals that after registration of FIR the accused was arrested.
The challan of the case has been submitted. As per prosecution case the applicant/accused during custody made disclosure and on his pointation the alleged crime weapon was recovered.
The prosecution during investigation had collected four empties of TT pistol and three casing of SMG. The Investigating Officer obtained medical certificate of injured Muhammad Tarique, whose statement was recorded on 18.09.2021. As per prosecution version the accused along with absconding accused Noor Muhammad armed with SMG made firing upon Najibullah, the crime report registered on 16.09.2021 at 1:00 p.m. As per MLC injured Muhammad Tarique was brought to hospital on 16.09.2021 at 12:24 p.m. Despite more than four months, the prosecution has neither recorded the statement under Section 161,Cr.P.C of inured Najeeb nor brought medical certificate in order to confirmed the injuries received by injured. In Syed Abdul Baqi Shah's case 1997 SCMR 32, it has been held that "The benefit of the conflict in the ocular and medical evidence from the tentative assessment thereof, will weigh in favour of the petitioner while disposing of his application for bail."
6. As per crime report six person with arms fired upon the complainant, his son and nephew.
Complainant remained unhurt while two sustained injured. On site inspection four casing of TT pistole and three empties of SMG were recovered. The number of injuries on the person of injured suggest that the noose has been thrown much wider by the complainant. Kalashnikov rifle is a very formidable weapon if six persons had participated in the crime, none would have escaped alive. In Awal Khan's case 2017 SCMR 538 it was held that "Kalashnikov rifle is fully automatic rifle and if nine rifles were at all used indiscriminately that would have caused considerable number of injuries to the victims including the deceased and the complainant's unhurt escape was impossible."
7. The law does not permit deeper appreciation of evidence while deciding bail application but the bail application cannot be decided in vacuum and the court has to look at the material available.
On perusal of record the MLC of injured Abdul Majeed is not available. The question is why laps .of four months the prosecution has neither collected the MLC nor recorded statement of injured under section 161, Cr.P.C, which create doubt. In this retard reliance is placed on the case of Rafeed Niaz v. State 2021 SCMR 1467, whereby it has been held as under:
5. We have heard learned counsel for the petitioner as also learned Law Officer at some length and have perused the record with their assistance.
There is no denial to this fact that the occurrence took place in the broad daylight and the parties were known to each other, so there is no question of mis-identification. However, during the course of proceedings, we have noticed that the injury ' ascribed to the injured PW/ complainant though is declared grievous but the same has not been mentioned under what definition/class it falls. The nature of the injury clearly reflects that the same has not caused any serious damage to the body of the complainant. Although the doctor has declared it grievous but the dimension of the injury has not been apprised, therefore, the medical report is materially deficient in its contents and did not qualify to be material evidence. We have been informed that the investigation of the case is complete and the petitioner is no more required for further investigation. The case of the petitioner is of further inquiry as envisaged under section 497(2), Cr.P.C. and further no useful purpose would be served while keeping him behind the bars till the conclusion of the trial pending adjudication before the Trial Court."
8. It appeared from the case filed no report of crime weapon has been collected, even otherwise recovery always considered as corroborative evidence. I Reliance is placed on the case of Ikhlaq Ahmed in Criminal Petition No. 1099 of 2022, whereby it has been held as under: "The recoveries always considered as a corroborative piece of evidence and in this case according to learned Additional Prosecution General, Balochistan the parcel of Kalashnikov and empties were sent together to the office of Forensic Science Laboratory and evidentiary values of the said recoveries will be determined by the trial court after recording the evidence but presently due to the fact that he did not cause any injury to anyone and being brother of main two co- accused, his case calls for further inquiry falling under subsection (2) of section 497, Cr.P.C."
9. The word phrase conferred in section 497, Cr.P.C. "reasonable ground believes" mean the prosecution require to show to the court that it has collected sufficient incriminating evidence, constituting reasonable grounds that accused has committed an office falling within the prohibitory clause of section 497 Cr.P.C. Liberty of a person is guaranteed in the constitution.
Reliance is placed on the case of Zaigham Ashraf v. State 2016 SCMR 18, whereby it has been held under: "9. 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 Criminal 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. Therefore, extraordinary care and caution shall be exercised by the Judges in the course of granting or refusing to grant bail to an accused person, charged for offence(s), punishable with capital punishment. The Courts are equally required to make tentative assessment with pure judicial approach of all the materials available on record, whether it goes in favour of the Prosecution or in favour of the defence before making a decision.
10. In the case of Amir v. The State (PLD 1972 SC 277) it was held that, "for purposes of bail, law not to be stretched in favour of prosecution-Benefit of doubt, if any arising, must go to accused even on bail stage". Similar view was taken in the case of Manzoor v. The State (PLD 1972 SC 81). These principles so laid down, are based on enunciation of law in interpreting the provision of section 497, Cr.P.C. and broader principle of justice. Till date, no departure or deviation has been made therefrom by this Court then, these are the principles of law and have binding, effect and shall be construed as guiding principles by all the Courts in the matter of grant or refusal of bail."
In view of above, the application is allowed. The applicant namely Momin F son of Khairo is admitted to bail under Sections 324, 147, 148, 149, P.P.C., in case FIR No. 18/2021 lodged with Police Station Sadder Sinjavi, subject to furnishing surety in the sum of Rs.5,00,000/- (Rupees five lacs) with P.R. bond of the like amount to the satisfaction of the trial court or Additional Registrar of this Court.
Needless to observe that the observations made in this order are tentative in nature and shall have no bearings on merits of the case at trial.