' This is an application for grant of bail moved on behalf of Rehmatullah petitioner against whom a case under section 307/148 read with section 149, P.P.C. Has been registered at Police Station Paharpur.
2. Brief facts of the case leading to the filing of this application are that on 25-8-1988 at 8-05 hours Said Rasool complainant lodged a report in injured condition to the effect that in order to avert a clash between two rival groups led by Ghulam Akbar on the one hand and Ghulam Sarwar on the other, over the embankment of land, the complainant Mushtaq, Umar Hayat and Muhammad Khan P.Ws. Reached the embankment of the land belonging to Qasim. They noticed Rehmatullah petitioner herein duly armed with kalashnikov, Ghulam Akbar, Ghulam Sarwar, Naimatullah also armed with various lethal weapons along with two other unidentified persons who had taken positions. On seeing the complainant party, Rehmatullah petitioner, is alleged to have opened firing with which the complainant sustained an entry wound one inch below anterior superior Mae spine on right side of an exit wound on upper half of right buttock size 3/4" x 1/4" with lacerated margins.
3. On the above report, the case against the petitioner and his other co-accused was registered under section 307/148 read with section 149, P.P.C. The petitioner could not be arrested after the registration of the case. On his arrest on 4-12-1988, the petitioner's plea for bail found favour with the EAC (Judicial) D.I. Khan but on an application of the complainant, the order of bail was recalled by the learned Sessions Judge, D.I. Khan. Hence this petition.
4. The learned counsel for the petitioner has sought bail of the petitioner on the following grounds:
(i) That the petitioner has been charged in the F.I.R. With firing of Kalashnikov, whereas three entry shells of five shots of rifle have been recovered from the point assigned to the petitioner in the site plan; (ii)that Ghlam Sarwar, a co-accused of the petitioner, who is alleged to have got the five shot rifle had been released on bail and, therefore, the petitioner was also entitled to bail; (iii)that ascendance against the petitioner is not proved because the so-called proclamation under section 87, Cr.P.C. Had been initiated against Naimatullah, another co-accused of the petitioner, and not qua the petitioner and that in any case, the alleged ascendance is not for noticeable period.
(iv) that presence of those who were not disputing the embankment has not been recorded in the site plan which is conspicuous and;
(v) the petitioner would be entitled to bail because the injury sustained by the complainant was found to be simple in nature.
5. The learned Assistant Advocate-General has vehemently opposed this application. It has been contended that the petitioner being accused of an offence under section 307/148 read with section 149, P.P.C. For an effective role cannot be allowed bail in view of the prohibitive clause of section 497, Cr.P.C. It is further contended that since the complainant had no motive of his own, the question of false charge would be out of place. It is also argued that even if the accused is not legally proved to have absconded, his absence for nearly four months was relevant under Article 21 of the Qanun-e-Shahadat. He maintained that specific description of kalashnikov instead of another rifle would not militate against the prosecution in opposing the plea of bail.
6. After giving my due consideration to the arguments addressed at the bar and going through material so far brought on the record, I am of the opinion that at this stage, the petitioner is not entitled to be released on bail. As regards the merits of the case, petitioner is accused of causing two fire-arm injuries to the complainant which act prima facie amounts to attempt to murder the complainant in view of the facts and circumstances. He was fired at by the petitioner without any provocation or as a result of any criminal act which leads to the inference that the petitioner had the intention at least to cause grievous injury. The charge of firing at the complainant is prima facie substantiated by the statements of three P.Ws. Recorded under section 161, Cr.P.C. The medical report notwithstanding its overwriting on the 'exit wound' which would be of little significance at this stage confirms that the complainant has received the fire-arm injuries. The recovery of three empty shells would further substantiate the charge against the petitioner. The ascendance or at least absence of the accused for nearly four months also disentitles the petitioner to the concession of bail. In the presence of above evidence it is not possible to say at this stage that it is a case of non-existence of reasonable grounds for believing the petitioner having committed an offence for which bail is prohibited under the law. This application is, therefore, dismissed.