1. Granted but subject to all just exceptions.
2. The facts leading to the present application for bail are that applicant/accused Akhtar Hussain is facing trial under sections 324 and 34, P.P.C., before learned IVth. Additional Sessions Judge, Karachi (East) which has arisen out of F.I.R. No,278 of 1998 of Police Station, Jamshed Quarters, Karachi.
1. ' The brief facts of the prosecution case, as disclosed in the F.I.R., lodged by one Abdul Rehman on 8-10-1998, are reproduced hereinbelow:-- "I live at the above address alongwith my parents. At about 11-00 p.m. I was sitting outside of my house alongwith my younger brother Rizwan and a Muhallah boy Azzam Qadri when 3/4 boys including Akhtar came. They fired. Akhtar fired at me and I received fire-arm injury on my right leg below the knee. I report that Akhtar with intent to kill me made firing upon me. Legal action may be taken."
2. ' The applicant/accused applied for bail before the trial Court but his bail plea was refused by impugned order, dated 1-12-1998.
3. ' The applicant/accused applied for the bail before this Court and his bail plea was refused by me vide order, dated 5-1-1999 with following observations which are reproduced herein under the extenso:-- "The perusal of record shows that applicant/accused alongwith his companions duly armed with lethal weapon went to the house of the complainant and without any rhyme or reason opened fire upon him with the result complainant sustained following injuries:-- ' (1) Fire-arm wound 0.5 c.m. In diameter circular in shape margins are inverted on upper part of right leg on medical side (wound of entry).
(2) Fire-arm wound about 1 c.m. x 0.5 c.m. Oval in shape margins inverted on upper part of right leg on lateral side (wound of (exit).'
4. ' The contentions of the learned counsel for the applicant/accused that the intention of killing the complainant is lacking in the matter; that the injury is on leg and no offence under section 324, P.P.C. Is made out; that the applicant/ accused has been involved malafidely; that no motive has been disclosed by the prosecution are misconceived.
5. ' The intention to kill the complainant is apparent from the fact that applicant went armed to the house of complainant and fired upon him. It was sheer luck of the complainant that he received injury on the leg. The final report regarding nature of injury is still awaited. Motive in every criminal case is not necessary. The case of prosecution cannot be thrown away for want of motive. Under the prevailing circumstances when law abiding citizens of Karachi are at the mercy of gun totters the act/motive of the applicant prima facie can be termed as terrorism. Applicant has been specifically named in the F.I.R. By the complainant as assailant.
6. ' The order of trial Court shows that private, independent prosecution witnesses have implicated the applicant. No enmity has been suggested or pointed out against the complainant or any of the prosecution witnesses. Prima facie the offence under section 324, P.P.C. Is made out, which is punishable with ten years.
7. ' The authorities Munir v. The State NLR 1985 AC 71, Shahbaz and another v. The State 1988 PCr.LJ 1184, Muhammad Ashraf and others v. The State 1988 PCr.LJ 1431 cited by the learned counsel for the applicant are of no avail to the applicant as the facts and circumstances of the cited cases are altogether different and distinguishable from the facts and circumstances of the present case.
8. ' The upshot of the above discussion is that the bail plea of applicant merits no consideration as there are reasonable grounds to believe that he is prima facie guilty of the offence with which he is charged and his case is covered by prohibitory clause of section 497(1), Cr.P.C. Consequently, bail application stands dismissed.
9. The observations made hereinabove are of tentative nature and they shall not in any way influence the trial Court while finally disposing of the case upon merits upon the evaluation of evidence brought on the record by the prosecution at the stage of trial."
10. ' The applicant/accused has again repeated his bail plea through present bail application.
11. ' I have heard Mr. Gulzaman Khan learned counsel for the applicant/accused and Mr. Muhammad Ismail Memon learned counsel on behalf of A.-G. For the State. The latter conceded to the grant of bail to the applicant/accused.
12. ' It is contended by the learned counsel for the applicant/accused that the injury on the person of injured is on non-vital part of the body; that Medico-legal Officer sent a letter to the injured directing him to appear for re-X-Ray but he did not turn up flit. Re-X-Ray, that the Medico-legal Officer in the column of history in the medical certificate has mentioned that some unknown person has caused the injury; that the F.I.R. Was delayed by 2 hours; that only one shot from fire- arm to injured has been ascribed to applicant/accused and he did not repeat the second fire which shows that intention of killing is lacking in the matter; that the motive is also not disclosed in the F.I.R., that the applicant/accused is in jail since last six months. It is, therefore, urged that applicant/accused is entitled to bail.
13. ' Learned counsel for the applicant/accused has cited following ruling in support of bail plea:--
(1) Saleem Khan v. The State 1999 PCr.LJ 140,
(2) Kazim Ali v. The State 1998 AIM 1535,
(3) Azad Khan and 4 others v. The State and another 1999 PCr.LJ 324,
(4) Abdul Waheed v. The State 1994 PCr.LJ 2345
(5) Shahbaz and another v. The State 1988 PCr.LJ 1184.
14. ' I have carefully perused the material placed on the record and I have given anxious consideration to the submissions of the learned counsel for the applicant/accused.
15. So for the contentions of the learned counsel for applicant/accused that injuries are on non-vital part of the body; that the intention of killing was lacking in matter; that the motive was not disclosed in F.I.R.; that no offence under section 324, P.P.C. Is made out were already considered by me in my previous order in Criminal Bail Application No,1320 of 1998. The findings are reproduced hereinabove; therefore, it will be needless to again given fresh findings on the points already decided. The delay per se in lodging the report is no ground for grant of bail in each and every case, because every case is to be decided on its own peculiar facts and circumstances. The contention that applicant/accused is in jail since last six months and that, therefore, he is entitled to bail is devoid of force as the statutory period in such cases is one year, moreover proviso (3) to section 497, Cr.P.C. Is subject to proviso (4) to section 497, Cr.P.C. And if case of an accused comes within the ambit of proviso (4) to section 497, Cr.P.C. Bail could be declined even on the ground of statutory delay. The Medico-legal Officer is not an eye-witness in the case, therefore, non-mention of the name of the assailant in the column of the history in the medico-legal certificate is not of much significance or importance and it cannot be considered in a bail plea. Similarly the injured did not appear for re-X-Ray examination or fire was not repeated second time by the applicant/ accused would tantamount deeper appreciation or evaluation of evidence which is not permissible in law at this stage. It is well-settled that for the purpose of bail only tentative assessm ent could be made and detailed assessment/evaluation of evidence is always deprecated by the Superior Courts.
16. ' The citation quoted above and relied upon in support of bail plea are distinguishable as each case is to be decided on its own peculiar facts and circumstances. The facts of one case cannot be considered while deciding another case.
17. It will not be out of place to mention that the opinion of State Counsel in each and every case is not binding upon the Courts. The Courts are required to adjudicate the matter in accordance with law with good conscience, without being influenced by the opinion of the counsel for the parties.
18. ' For the reasons mentioned hereinabove the bail plea of applicant/ accused merits no consideration. Resultantly the bail application is dismissed.
19. ' However, the applicant/accused may if so advised move the trial Court for bail after material evidence is recorded.
20. ' The trial Court is directed to commence that recording the evidence and expeditiously dispose of the case.
21. ' The observations made hereinabove on the merits of the case are only tentative and the trial Court shall not be influenced thereby in any manner while deciding the case upon evaluation of the evidence brought on record by the parties.