' Wali Khan, petitioner, who alongwith his two co-accused is involved in a case under section 324/34, P.P.C. Vide F.I.R. No,84, dated 11-9-1994 registered at Police Station "B" Division, Mardan, seeks bail pending trial.
2. In the F.I.R. Of occurrence taken down at Nehr Chowk on 11-9-1994 at 18-45 hours Sardar Hussain, complainant, charged Wali Khan, petitioner, Azizur Rehman and Karimullah, for firing at him and his brothers Inamullah and Kifayatullah as a result of which the complainant sustained: (i) a fire-arm entrance wound of the six of 1/2" x 1/2" on front of the ankle-joint, (ii) a firearm exit wound of the size of 1" x 1" on the lateral aspect of left foot; (iii) a fire-arm entrance wound of size of 1/2" x 1/2" on the lateral aspect of right mid leg and; (iv) a fire-arm exit wound of the size of 1" x 1" on the medial side of right mid leg.
3. The petitioner and his co-accused have been charged in the F.I.R. With identical roles. The petitioner was arrested earlier and, therefore, he moved an application for bail on 25-9-1994. He was refused bail by the learned Additional Sessions Judge-II, Mardan, on the ground that the petitioner has been directly charged in the F.I.R.; that the occurrence is of broad daylight, the report was lodged with promptitude; and, that the version given by the complainant in the F.I.R. Is fully supported by the medical evidence according to which the nature of injuries was grievous. The same learned Additional Sessions Judge-II, however, on 7-11-1994 allowed bail to co-accused of the petitioner, namely, Azizur Rehman and Karimullah, inter alia, on the grounds; (i) that the accused aforesaid and the petitioner were charged for causing fire-arm injuries on the ;legs and foot and non-vital parts of body of the complainant; (ii) that the medical evidence available on the record showed that there were four fire-arm injuries on the person of the complainant out of which two injuries were inlet while the other two were outlet and, therefore, in fact there were two injuries on the person of the complainant for which three persons had been charged and; (iii) that in the F.I.R. It has not been specifically pointed out that with whose fire shots the complainant got injured.
The delay of two months in the trial was taken to be another ground for their release on bail.
4. The petitioner again moved the same learned Additional Sessions Judge-II claiming bail on the rule of consistency. The learned Additional Sessions Judge by his order, dated 17-11-1994 again refused bail to the petitioner on the following reasonings:-- "Though the co-accused of the petitioner were granted bail vide order, dated 7-11-1994 but it is regretted that neither prosecution nor defence was fair to have pointed out at the time of arguments that bail application of accused Wali Muhammad had already been rejected. After release of his co-accused vide order, dated 7-11-1994 accused-petitioner has filed this bail application on the basis of rule of consistency. He was misled in this behalf. It is also rule of consistency that his previous bail application was already rejected so on the basis of same rule this application too merits dismissal. Local police has submitted challan against all the accused and trial is about to commence. After rejection of earlier bail application, there is no fresh ground (except the so-called rule of consistency which is inapplicable in the present case) which can make the accused-petitioner entitled to the concession of bail."
5. Mr. M. Issa Khan, learned counsel for the petitioner, contends that three persons have been 'charged for two injuries; that two co-accused of the petitioner charged with equal role had been released on bail and instead of giving the benefit of rule of consistency the petitioner had been illegally refused bail by the learned Additional Sessions Judge-II. According to him, the case of the petitioner was completely at par with that of his two co-accused who had been released on bail by the same learned Additional Sessions Judge and further that the injuries sustained by the complainant were neither on any vital part of his body nor had been declared dangerbus to life and; lastly that for two entrance wounds three accused have been equally charged without assigning specific role to either of them and thus the case of the petitioner was one of further inquiry.
6. Mr. Khalid Khan, learned counsel for the State, has strenuously opposed the plea of bail raised on behalf of the petitioner and on the authority of Gul Afzal v. The State PLD 1992 Pesh. 125 contended that an assailant would be saddled with a criminal intention to commit murder causing grievous hurt to the complainant by a fire-arm.
7. No doubt the complainant had sustained two inlet fire-arm wounds of the size of 1/2" x 1/2" on his right leg and on front of the ankle-joint. Nonetheless, the injuries attributed are admittedly neither on the vital part of the body of the complainant nor have been declared dangerous to life. Besides, the complainant has not assigned any specific role to either of the three accused for two entrance wounds. The learned Additional Sessions Judge, while refusing bail to the petitioner has fallen into a grave error to hold that on the rule of consistency the petitioner was not entitled to bail. Prima facie, the rule of consistency was fully attracted to the case in hand and the benefit thereof ought to have been extended to the petitioner. The petitioner is in the judicial custody for more than four months. He is, therefore, admitted to bail pending trial in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the Illaqa Magistrate.