RAJA SHAKEEL AHM AD, J. The above titled bail petition is filed by the petitioners/accused for grant of bail, feeling aggrieved from the order dated 06.12.2021 passed by the learned Sessions Judge Diamer, in bail petition bearing number B.A. No. 70/2021.
2. The short story of lodging FIR as per its contents, is that on 21.05.2021 at about 6:00 pm nephew of complainant namely Umar Asim was going taking his goats at Sair Dass near High School. Already aimed accused namely Suboor, Mir Wali, and Sulaiman residents of Khinar opened fires at Umar Asim, who received bullet injuries on his thighs. The complainant named witnesses Muhammad Ayaz and Muhammad Altaf as eye-witnesses. The complainant mentioned that the occurrence is the result of old enmity. After lodging FIR, the local police arrested the petitioners and registered FIR No. 33/2021 under section 13 AO against the petitioner No.1, who have filed the instant petition for grant of bail.
3. The learned counsel for petitioners/accused contended that the petitioners/accused are innocent and the local police registered the FIRs against them with the collusion of complainant party. The complainant party was having grudge with the petitioners/accused and just on their own ulterior motives involved the petitioners in the instant case with mala fide intention and ulterior motives. No specific role has been attributed to the petitioners or their co-accused nominated in the FIR by the complainant and the FIR is silent regarding effective fire hit the victim. The co- accused of petitioners nominated in the FIR attributing equal role have already been released by the police under section 169, Cr.P.C. and the petitioners are also entitled for the concession of bail on the rule of consistency. To release the co-accused under section 169, Cr.P.C. makes the prosecution case doubtful and the benefit of doubts enlarges to the petitioners/accused and not extending towards the prosecution. As no overt act attributed to the petitioners or the co-accused, due to which the prosecution case falls within the ambit of further inquiry. The petitioners are behind the bars soon after their arrest. The investigation up to the extent of petitioners has already been completed and the petitioners are no more required to the police for the purpose of investigation. At the end, the learned counsel prayed for grant of bail.
4. On the other hand, the learned Deputy Advocate General opposed the contention of learned counsel for petitioner and contended that the petitioners are directly nominated and the motive behind the occurrence is categorically mentioned by the complainant along with names of eye- witnesses. The local police recovered weapon of offence on the pointation of petitioner No.1 and the occurrence was taken place in day light. There is apprehension of absconsion or tampering with the evidence if the petitioners released on bail. Finally, the learned DAG prayed for, dismissal of the petition.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the FIR of the case as well as record of the case.
6. Perusal of FIR, it transpires that the petitioners along with co-accused directly nominated in the FIR attributing them equal role of firing, but without determination of effective firing upon the injured victim, police completed the investigation and put the present petitioners behind the bar and released the co-accused under section 169, Cr.P.C. All accused persons though were alleged to be armed with fire arms, but none of them had repeated their fires, when the injured was at their mercy. Prima facie, there appears no intension on the part of the applicant that they intended the death or Qatl-i-Amd of the injured. The injuries although grievous but are on non-vital part of the body which also prima facie shows lack of the intention to cause Qatl-i-Amd, hence whether section 324, P.P.C. can be invoked or not is question, which can only by resolved by the trial Court after taking consideration the relevant evidence to be recorded in this respect, hence the case of the petitioner also falls within the ambit of further inquiry on the basis of reasons mentioned supra.
7. The petitioners are behind the bars since their arrest and trial against them still not commenced.
Speedy trial is recognized right of the accused/petitioners is justified for asking the relief of post arrest bail. The petitioners cannot be detained for indefinite period in a case where the investigation up to extent of petitioners has already been completed and they are no more required for the purpose of investigation. Mere detention of the petitioners prior to conviction amounts to punishment before conviction.
8. The alleged offences i.e. 336/337-F(iv), P.P.C. reflected in the FIR are not falling under the ambit of prohibitory clause, and the section 324, P.P.C. although falling within the prohibitory clause, but it is settled law that in case of further inquiry; bail is to be granted as a matter of right and not by way of any concession or grace, mere fact that the accused are involved in a case falling within the prohibitory clause would not be sufficient for the rejection of bail in the case is of further inquiry.
9. Number of injuries as described in Medico-Legal-Report did not commensurate with number of accused and in such eventuality it could not be said as to whose fire shot hit the injured and whose did not. None of accused had been assigned any specific role regarding the injuries inflicted to the victim. Allegations against the accused/petitioners were of generalized and collective nature which ingrains an element of suspicion, hence the petitioners case certainly calls for further inquiry within the meaning of section 497(2), Cr.P.C.
10. Considering all above aspects of the case that, the alleged injuries on the person were not on vital part of his body, and the alleged offence under section 337-F(vi), P.P.C. does not fall under the prohibitory clause of section 497, Cr.P.C. and that applicability of section 324, P.P.C. is yet be determined at the time of trial and that the case of petitioners falls under the ambit of further inquiry, I had granted bail to the petitioners vide short order dated 04.01.2022 subject to their furnishing of bail bonds in the sum of Rs. 500,000/ (five lac) each with two sound and solvent sureties each in the like amount. These are the reasons for grant of bail to the petitioners/accused.
The instant petition is hereby disposed of in the light of above terms.
The above findings are tentative in nature and the trial Court need not be influenced in any way.
The trial Court may reach its own conclusions after recording evidence in the case.