2014 PLP 12 (SCMR)

EJAZ AFZAL KHAN, J.

This petition for leave to appeal has arisen out of the judgment dated 6-5-2013 of the Peshawar High Court, Abbottabad Bench whereby the learned Judge in its chambers dismissed the petition of the petitioner for his enlargement on bail in a case registered against him and another under sections 324/334/148/149, P.P.C. and 13 Arms Ordinance vide F.I.R. No.1307 dated 4-12-2012 in Police Station, City Mansehra.

2. According to the averments made in the F.I.R., petitioner and his son Shehbaz Haider following an altercation between them and the victim fired shots at him with their pistols which hit him on his abdomen.

3. Learned counsel appearing on behalf of the petitioner after taking us through the data available on the record sought to canvass at the bar that not only the implication of the petitioner in this case but alleged recovery of pistol at his instance is also false on the face of it; that the ocular account is in conflict with the medical evidence and that dimension of injuries on the person of the victim prima facie negate the use of fire-arm like pistol in the occurrence, therefore, the case becomes arguable for the purpose of bail and thus calls for further inquiry.

4. Learned State counsel assisted by the learned counsel for the complainant argued that the petitioner charged for having fired at the victim in a promptly lodged F.I.R. prima facie stands connected with a crime attracting prohibitory clause, therefore, question of further inquiry does not arise. The learned counsel by referring to the case of "Mumtaz v. The State" (2012 SCMR 556) argued that if at all, there is any conflict between the ocular account and the medical evidence, it cannot be gone into at bail stage. The learned counsel next contended that where one of the empties recovered from the spot matched with the pistol recovered at the instance of the petitioner, possibility of false implication is just un-thinkable. The learned counsel by summing up his arguments contended that where trial has commenced, expression of any opinion one way or the other would not be in the fitness of things.

5. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.

6. According to the F.I.R., the petitioner and his son fired many shots at the victim from their pistols which hit him on his abdomen. According to the injury sheet, the victim bears injuries on his thighs and legs while according to the medical evidence, he bears multiple firearm injuries on his scrotal region and femoral area of right and left thighs having a dimension of 1/2 cm x 1/2 cm. Co-accused of the petitioner was arrested with a pistol soon after the occurrence in the nearby premises. Petitioner, too, was arrested soon after the occurrence in the nearby premises but without their being any pistol in his possession. Against this backdrop, the questions whether the facts recounted above project a conflict between the ocular account and the injury sheet on the one hand and the ocular account and the medical evidence on the other; whether petitioner actually participated in the crime or has been roped in because he happens to be the father of the co-accused and whether injuries with a dimension of 1/2 cm x 1/2 cm on the person of the victim could be caused by shots fired with pistols from a distance of four paces, would essentially call for further inquiry and thus make out a case for bail. The fact that the petitioner has been in jail for more than seven months would also tilt the scales of justice in favour of bail rather than jail. Reference to the case of "Mumtaz v. The State" (Supra) will not advance the case of the respondent as each case being captive of its own facts and circumstances has to be decided accordingly. The case of "Syed Abdul Baqi Shah v. The State" (1997 SCMR 32) may well be referred to in this behalf where such aspect was considered as a ground for grant of bail.

7. Yes, one of the empties allegedly picked up from the venue of occurrence matched with the pistol alleged to have been recovered at the instance of the petitioner on the third day of the occurrence, but it cannot be over emphasized when the case, in view of the questions formulated above, calls for further inquiry. Commencement of trial, too, cannot come in the way of grant of bail, if in the opinion of the Court, a case for further inquiry is made out. Above all else when ultimate conviction, if any, repairs the wrong caused by mistaken relief of bail it would be rather harsh and even unjust to decline bail to the petitioner in a case entailing a sentence which may extend to 10 years.

8. For the reasons discussed above, this petition is converted into appeal and allowed. The petitioner shall be released on bail on furnishing bail bonds in the sum of Rs 500,000 with two sureties of the amount to the satisfaction of the learned trial Court. MWA/K-9/SC Bail granted.