2005 PLP 1828 (YLR)

Zaheer-ul-Hassan Zahoor for Petitioner. Malik Muhammad Akbar Awan for the State. Date of hearing: 15th March, 2005. Petitioner was refused post-arrest bail by the learned Additional Sessions Judge on 24-7-2004 in case vide F.I.R. No.345, dated 23-11-2003 registered under sections 324, 337-F(v), 148 and 149, P.P.C. with Police Station Chak Baidi, District Pakpattan Sharif. He has now filed instant petition for the same relief.

2. Gravamen of the charge, as it appears from the F.I.R., is that the petitioner along with his co-accused in furtherance of their common intention armed with fire-arm weapons assaulted the complainant and injured him. The petitioner was arrested on 27-3-2004 and after remaining on physical remand, has since been sent to judicial lock-up.

3. Learned counsel for the petitioner submitted that the petitioner is absolutely innocent and has been involved in a false case due to enmity and animosity of the complainant/police. He further submitted that the complainant having filed a private complaint under section 200, Cr.P.C. has deserted the prosecution version wherein the petitioner was only attributed ineffective firing. It was further argued that even according to the allegations in private complaint, the injury attributed to the petitioner is on non-vital part of the body of the complainant i.e. on his thigh of the right leg, which shows that there was no intention to kill the complainant. It was also argued on behalf of the petitioner that in spite of lapse of one year, trial of the case has not commenced. According to him, fake recovery of .30 bore pistol was planted on the petitioner which was not sent to Forensic Science Laboratory for the report that it was really used. On account of non -recovery of any empty of .30 bore pistol from the place of occurrence, case of the petitioners was claimed to be that of further inquiry.

4. Learned counsel appearing on behalf of the State opposed the grant of bail with the arguments that the petitioner has been specifically named in the F.I.R. with attribution of specific role. It was further submitted that since the local police, had joined hands with the petitioner, the complainant was coerced to file a private complaint wherein fire-arm injury on right leg of the complainant is attributed to him.

5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record. Though on account of filing of private complaint, case of the petitioner is not covered by section 497(2), Cr.P.C. yet it makes his case that of further inquiry especially when no empty of the fire-arm allegedly used, was recovered from the place of occurrence. The prosecution has not opted to seek report from the Forensic Science Laboratory regarding use/workability of the .30 bore pistol allegedly recovered from the petitioner. In spite of his arrest on 27-3-2004 and submission of challan in Court on 31-3-2004, trial of the case has not started and further detention of the petitioner would not advance to prosecution case, any more. There is no probability of petitioner's tampering with prosecution evidence which consist of kith and kins of the complainant. Bail is not to be withheld as of punishment in view of law laid down by the Hon'ble Supreme Court of Pakistan in a case reported as Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). The petitioners, would face the sentence if ultimately convicted by the trial Court.

6. For the reasons noted above, the petitioner has made out a case for his post- arrest bail in the case registered against him, pending its trial. This petition is accordingly allowed and the petitioner is admitted' to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties in the like amount to the satisfaction of the trial Court. H.B.T./M-1044/L Bail admitted.