2010 P Cr (PLP)

MANZOOR AHMAD MALIK, J.

Muhammad Arif, petitioner seeks bail after arrest in case F.I.R. No.648 of 2009 dated 1-11-2009 offence under sections 324, 452, 148 and 149, P.P.C. registered at Police Station Jhall Chakian, District Sargodha. Precisely allegation against the petitioner is that he along with his co-accused trespassed into the house of the complainant gave beating to the inmates and made firing at Abu Safyan, brother of the complainant.

2. Learned counsel for the petitioner, in support of this petition, contends that the petitioner is accused of causing fire-arm injury on the left calf of brother of the complainant namely Abu Safyan; that there is no allegation of repetition of injury on the part of the petitioner as there is only one fire-arm injury on the person of the injured and that too on the non-vital part of the body; that the petitioner is behind the bars since 15-12-2009; that charge against the petitioner was framed on 10-2-2010 but so far no prosecution evidence has been recorded and the learned trial Court has even summoned the prosecution witnesses through bailable and non-bailable warrants of arrest and in the circumstances, case against the petitioner is one of further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure. In support of his submissions learned counsel has placed reliance on Muhammad Umar v. The State and another (PLD 2004 SC 477).

3. Complainant of the case was present in the Court on 7-7-2010 and sought adjournment to engage a learned counsel and the case was adjourned. Again on 27-7-2010 complainant appeared in person and stated that his learned counsel was out of Lahore and the case was adjourned for today with the observation that no further adjournment will be allowed. Today neither the complainant nor his learned counsel has turned up.

4. Learned Deputy Prosecutor-General opposes this petition on the grounds that the petitioner is nominated in the F.I.R. with a specific role; that he was found involved during the course of investigation; that charge has been framed against the petitioner and any observation by this Court at this stage regarding merits of the case may prejudice the case of either party during the trial.

5. I have heard learned counsel for both the sides. Though the petitioner is nominated in the F.I.R. but the allegation against him is that he fired with his gun which hit on the calf of left leg of the injured. There is no allegation of repetition of fire shot against the petitioner as the injured sustained only one firearm injury. In "Muhammad Umar v. The State and another" (PLD 2004 SC 477) in the similar situation the Hon'ble Supreme Court of Pakistan observed as under: "We have heard learned counsel for both the sides and have also gone through the record particularly the medical certificate. A perusal whereof indicates that allegedly the petitioner fired upon the outer side of the right leg's middle part of the injured Shahid Iqbal, therefore, prima facie, we are of the opinion that he had no intention to fire upon the vital part of the injured Shahid Iqbal for the purpose of launching murderous assault. Be that as it may, now the challan has been submitted, trial has commenced, petitioner is in custody with effect from the date of his arrest and is no more required for the purpose of investigation of the case, therefore, no useful purpose will be served by keeping :him in custody."

6. There is another facet of the case: The charge was framed against the petitioner on 10-2-2010 but no evidence has been recorded so far. The learned trial Court issued warrants for summoning the prosecution witnesses on many dates of hearing as is clear from the interim orders, certified copy whereof has been produced by the learned counsel for the petitioner. In these circumstances, petitioner's case is one of further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure.

7. As far as commencement of trial is concerned, it is settled law that mere commencement of trial is no ground for refusal of bail if case of the petitioner is otherwise of further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure. While holding so, I am fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Ismail .v. Muhammad Rafique and another" (PLD 1989 SC 585). Therefore, this petition is allowed and the petitioner is admitted to bail after arrest subject to his furnishing bail bond in the sum of Rs.1,00,000 (rupees one lac only) with one surety in the like amount to the satisfaction of learned trial Court.

8. Before parting with this order it is clarified that the observations made in this order are tentative in nature and relevant only for the purpose of decision of this bail petition. The learned trial Court will not be influenced by an observation in any manner whatsoever. N.H.Q./M-459/L Bail allowed.