2001 P Cr (PLP)

Malik Abdul Qayyum for the State. Date of hearing: 20th June, 2000. Petitioner seeks post‑arrest bail in case F.I.R. No. 72, dated 28‑3‑1999 for the offence under section 302/324/109/34, P.P.C. registered at Police Station Pindi Gheb, District Attock.

2. Briefly stated the facts are that the present petitioner alongwith his co‑accused Mahboob, Gulzar, Zumarrad Khan, Mumraiz Khan and Mubarak Ali (since deceased) duly armed with weapons caused injuries to Gul Muhammad and Ghulam Muhammad resulting into their death. The petitioner applied for bail which has been declined by the learned Additional Sessions Judge, Attock, vide order, dated 6‑5‑2000.

3. Arguments heard. Record perused.

4. Contentions of the learned counsel for the petitioner is that there is conflict between the oral evidence as well as the medical evidence so far as it relates to the injuries attributed to the present petitioner on the person of Ghulam Muhammad deceased; that no recovery of alleged weapon of offence has been made from him; that no motive has been attributed to the present petitioner; that the petitioner has been found innocent by as many as three Investigating Officers; that injury on the person of Gul Muhammad deceased is on the non‑vital part of the body; that injuries on the person of Gulzar co?-accused have been suppressed by the complainant while lodging this F.I.R. In support of his contentions regarding absence of motive as wee as non?-recovery of any weapon of offence, he has placed reliance on Ghulam Nabi and another v. The State 1998 PCr.LJ 968 and Muhammad Iqbal v. The State 1997 MLD 1530. Regarding declaring the petitioner as innocent by the Investigating Officers, he has placed reliance upon Muhammad Afzal v. The State 1984 SCMR 429, Amir Ali and others v‑ The State 1984 SCMR 521, Muhammad Abbas and 2 others v. The State 1987 SCMR 483 and Dr. Muhammad Aslam v. The State 1993 SCMR 2288. He has further relied upon Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857 to the effect that if the name of the accused appears in Column No. 2 of the report under section 173, Cr.P.C., he (accused) shall not be considered as accused person. Regarding the discrepancies between the oral evidence viz. a viz. medical evidence, he has placed reliance on Syed Abdul Baqi Shah v. The State 1997 SCMR 32 and Muhammad Ashraf v. The State 1999 PCr.LJ 1464. He further contended that petitioner was arrested on 3‑5‑1999 and is in jail since then and the trial has not so far started. He thus, submitted that this petition may be accepted and he may be released on bail.

5. Conversely, the bail application has been opposed by the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant. The stand of the learned counsel for the complainant is that even if there is some discrepancy regarding injury on the person of Ghulam Muhammad deceased, yet there is no discrepancy so far as injury on the person of Gul Muhammad deceased is concerned. He submitted that mere discrepancy in the oral evidence viz. a viz. medical evidence is not a good ground for grant of bail. In this respect he has placed reliance on 1982 SCMR

208. He further contended that the mere fact that the Investigating Officers have declared the petitioner as innocent does not make‑ any difference, as the main point to be seen is the basis for declaring the accused as innocent. In this respect he has placed reliance upon Bashir Ahmad and 2 others v. The State 1994 SCMR 1147 and Liaqat Ali v. The State PLD 1994 SC

172. Regarding placing the name of the accused/petitioner in Column No‑2 of the report under section 173, Cr.P.C. he submitted that it is of no help to the petitioner and placed reliance upon Nasir Abbas v. The State 1995 SCMR 1333. He further contended that although the injuries on the person of Gulzar co‑accused of the petitioner, have not been mentioned in the F.I.R. yet the complainant has explained the said injuries later on in his statement recorded on the same date. He further submitted that the case is now fixed for 24th instant, when the copies of the statements of witnesses shall be delivered to the accused. He thus, submitted that the petition may be dismissed.

6. A perusal of the facts narrated above reveals that the petitioner has been assigned the role of causing an injury on the forehead of Ghulam Muhammad deceased as well as on the left arm of Gul Muhammad deceased. As per post‑mortem report of Ghulam Muhammad deceased, no injury, attributed to the petitioner has been observed on his person; and this fact makes the case open for further inquiry. Although injury on the person of Gul Muhammad deceased is proved from the post‑mortem report, yet it is fact that the said injury is not on vital part of the body. Thus, it is clear that firstly there is a conflict between the oral and medical evidence regarding injury on the person of deceased Ghulam Muhammad and secondly injury on the person of Gul Muhammad deceased has been found on the non‑vital part of his body. It is also fact that no direct motive is attributed to the petitioner A and he has also been found innocent by as many as three different Investigating Officers and his name has also been placed in Column No. 2 of report under section 173, Cr.P.C. The petitioner is also in jail since 3‑5‑1999 and trial has not yet commenced and case is fixed for 24th instant for supply of copies to the accused.

7. For what has been discussed above, the case of the petitioner squarely falls within the ambit of section 497(2), Cr.P.C. as such, petition is accepted and the petitioner is admitted to bail in the sum of rupees two lacs with one surety in the like amount to the satisfaction of the trial Court. N. H. Q. /M‑343/L ???????????????????????????????????????????????????????????????????????????????????????? Bail granted.