Niaz Ali son of Jamrod, resident of Garhi Sikandar Khan, District Peshawar petitioner has moved this application for post --arrest bail in case F.I.R. No.568 registered on 11-6-2001 under section 324 of Pakistan Penal Code at Police Station Pishtakhara. The prosecution case in brief is that on the day of occurrence i.e. 11-6-2001 Muhammad Atif son of Tila Muhammad complainant was on the way to his shop and when he reached at the site of occurrence i.e. Road leading to 'Yargharo' situated in Garhi Sikandar Khan, he was tired upon by the petitioner as a result of which he sustained injury on his back. Both the learned lower Courts i.e. Judicial Magistrate and Additional Sessions Judge, Peshawar have denied concession of bail to the petitioner vide orders, dated 26-7-2002 and 30-7- 2002 respectively.
2. Mr. Abdul Qayum Sarwar, Advocate, for the petitioner contended that the petitioner has been falsely implicated in the case in view of cross-case registered vide F.I.R. No.567, dated 11-6-2001 Police Station Pishtakhara, for offences under sections 302/324/148/149, P.P.C. In which one of the brothers of the petitioner lost his life and others sustained injuries at the hand of the complainant party. The learned counsel also contended that there is no incriminating material on the file to connect the petitioner with the guilt and the absconsion attributed to the petitioner in absence of corroborative evidence is meaningless and does not involve the petitioner with the crime in any manner. Concluding the arguments the learned counsel reiterated that mere filing of challan in Court against an accused person is not bar to grant of bail if the case of the accused person is otherwise found tit for his admission to bail. To support the contentions he placed reliance on Noorullah and 2 others v. The State (PLD 2000 Quetta 72), Bashir Ahmad alias Noor Ahmad v. The State (1999 UC 335), Javed Iqbal and 3 others v. The State (1984 PCr.LJ 3246), Nawab v. The State (1983 PCr.LJ 2221(1)), Jalil v. The State (1999 YLR 1493) and Pervaiz Iqbal v. The State (2000 YLR 600).
3. Mr. Muhammad Jamil Qamar, Deputy Advocate-General on the contrary opposed the bail application and urged that the prosecution is in possession of sufficient material to connect the petitioner with the guilt and at this stage it is not proper for the Court to grant bail to the petitioner specially when challan has already been submitted in Court. The learned counsel also contended that immediately after the occurrence the petitioner disappeared from his village and went into hiding for sufficient long time which disentitles him the normal concession of bail.
4. I have heard at length the arguments of learned counsel for the parties in the light of the material on record and the case-law cited at the bar.
5. 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, and that a bail. Application has to be disposed of within the framework of section 497, Cr.P.C. And the mere fact that petitioner is involved in a case falling under the restrictive clause would not be sufficient for the rejection of the plea of bail of the petitioner, if his case is that of further inquiry. In the instant case, the registration of cross-case vide F.I.R. No.567, dated 11-6-2001 under sections 302/324/ 148/149, P.P.C. Has been concealed. The question of aggression cannot be determined at this stage. The petitioner has been arrested on 15- 7-2002 and he is in jail since his arrest. He is charged for one fire shot and he has not repeated the same. The injury on the person of the complainant is not found grievous in nature per medical report.
6. It is true that the petitioner was apprehended after more than a year of the occurrence but it is equally true that in view of the facts and circumstances of the case, the concession of bail cannot be declined to him on this ground alone.
7. So far as the question regarding submission of challan is concerned I find that' commencement of a trial poses no insurmountable hurdle in the way of bail provided the accused succeeds in making out a case of further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C.
8. For what has been said above, the involvement of the petitioner in the commission of the crime is held to be a question of further inquiry and I hold that he is entitled to be admitted to bail than to be retained in jail. The application of the petitioner is accepted and he is directed to be released on bail on furnishing bail bonds in the sum of Rs.200,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate, Peshawar.
9. The observations Made above are tentative in nature and confined to the order in hand.
10. I had accepted the application of the petitioner for grant of bail for reasons to be recorded later.
Above are the detailed reasons.