P L D 2004 Karachi 38 (PLP)

Ali Azher Tunio; Asstt. A.-G. for the State. This order will dispose of the bail application filed by applicant Ali Dost involved in Crime No.83 of 2001 of Police Station Ratodero. The facts giving rise to the present application are that the complainant Rahib along with P.W. Zulfiqar Ali, Ashique Ali and other were standing at their brick-kiln, when at about 8-00 a.m. applicant Ali Dost and co-accused Gulsher and Behram and armed with guns, and Mumtaz armed with pistol alongwith two unidentified persons armed with pistol and kalashnikov, came there. Applicant Gulsher threatened the complainant that he would not be spared and then fired from his gun at the complainant which hit him on his chest whereas applicant, Ali Dost caused a fire shot from his gun at the complainant which hit on his right hand Co-accused Behram fired from his gun which hit him on his chest. In the meanwhile the P.Ws. and other persons came there and the culprits started firing in the air. The P.Ws. were successful in apprehending co accused Gulsher and Mumtaz alongwith their respective weapons whereas the other persons ran away. The motive of the incident has been alleged that few days back co-accused Gulsher declared Imdad Jagirani as `Karo' therefore they had threatened the complainant party of dire consequences. Hence the incident had taken place. A bail application was moved before the trial Court but the same was dismissed therefore the present application. Learned Advocate for the applicant has stated that the part assigned to the present applicant is of causing gunshot injury on the head of the complainant which is a non-vital part of the body, and that the injury has been declared to be falling under section 337(f)(v), P.P.C. which is punishable with five years' imprisonment. He has further stated that the said injury was kept reserved but on 21-11-2002 after more than one year the certificate was issued, which is a manipulated one, that the co-accused Gulsher and Behram who were allegedly caused fire-arm injury on the chest of the complainant have been let off by the police during the process of investigation, therefore, the case requires further enquiry and that the offence is not punishable with death or life imprisonment. In respect of the present applicant as vicarious liability is yet to be determined at the time of trial. On the other hand learned Assistant A.-G. has stated that the name of the applicant is mentioned in the F.I.R. specific role of causing of fire-arm injury has been assigned to the applicant and that the co-accused Gulsher and Behram have been issued N.B.Ws. by the trial Court as they have been joined as accused persons. He has further stated that the injury attributed to the present applicant falls under section 337-F(v), P.P.C. which is punishable with five years' imprisonment therefore the applicant is not entitled for the concession of bail. We have given due consideration to the arguments and find that two accused persons Gulsher and Behram were let off by the police though specific allegation was attributed to, them of causing fire-arm injury on the chest of the complainant however they have been joined as accused persons by the trial Court by issuing N.B.Ws. against them. The applicant has been assigned part of causing injury which is punishable with imprisonment of five years as such the responsibility of the applicant, if any; would be to that extent. The question of delay of more than one year in issuing final medical certificate 'is also creating suspicious circumstances but the same can be determined at the time of trial. However, vicarious liability is yet to be determined at the time of the trial in view of the investigation conducted by the police where two accused persons were let off. Under the above circumstances we are of the considered view that the applicant is entitled for concession of bail therefore bail is granted to the applicant in the sum of Rs.1,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court. The application is allowed. H.B.T/A-497/K Bail granted.