2010 P Cr (PLP)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this petition, petitioners Rahim Bakhsh son of Ashiq Muhammad and Ghulam Yasin son of Abdullah seek post-arrest bail in case F.I.R. No.544/2008 dated 29-11-2008 registered at Police Station Saddar Shujabad, District Multan, under sections 452, 324, 148, P.P.C. at the instance of Muhammad Yasin, complainant, respondent No.2.

2. Briefly allegation against the petitioners is that they with their respective fire-arms caused injuries to the injured person, Rabnawaz on left thigh in this case. Another co-accused, namely, Muhammad Saleem caused fire-arm injuries on the left thigh of injured Muhammad Nadeem. As per contents of F.I.R, it is alleged two hours earlier to the occurrence there was exchange of hot words between the two groups in hotel of complainant situated in Shujabad City, this exchange of hot words resulted into scuffling in hotel, hence, instant F.I.R.

3. Petitioners along with their co-accused, Muhammad Saleem applied for their post-arrest bail before the learned Judicial Magistrate, who vide his order dated 16-9-2009 allowed bail to the petitioner, Muhammad Saleem and rejected to the extent of the petitioner. After rejection of post-arrest bail from the learned Judicial Magistrate, present petitioners tiled petition for post-arrest bail before learned Additional Sessions Judge, Shujabad which was declined on 4-11-2009.

4. Learned counsel for the petitioner contends that two fires of .30 bore pistol are attributed separately to Ghulam Yasin and Rahim Bukhsh petitioners on the left thigh of injured, Rabnawaz; he contended that injuries attributed to petitioners are muscle deep bone is not exposed, which are declared simple in nature; there is inordinate delay of more than five hours in lodging the F.I.R.; petitioner applied for recording of cross-version to learned Justice of Peace, who passed favourable order for recording cross-version but even then police declined to record the cross-version. Petitioners accused filed a private complaint in which the complainant party is summoned; further contends that petitioner did not repeat the fire only one fire-arm is attributed to each of the petitioners; the injuries on body of injured, Rabnawaz are on non-vital part; further contends that fire-arm injury was attributed to co-accused, Muhammad Saleem, who caused the injury with .30 bore pistol on the left thigh of Muhammad Nadeem; learned Judicial Magistrate allowed bail to Muhammad Saleem in a similar role and declined the bail to the petitioners; keeping in view the rule of consistency petitioners are also entitled' for bail as similar role like Muhammad Saleem is attributed to the present petitioners; it was free fight with no previous pre-meditation, hence, provisions of section 324, P.P.C. does not attract; injuries attributed to both the petitioners upon the person of Rabnawaz injured according to the MLC are only muscle deep and according to X-ray report same had been declared to be simple in nature as is opined by the doctor and no bony lesion has been seen and ultimately nature of the injuries was declared to be Ghair-Jaifa-e-Mutaiahmah (section 337-F(iii)) for which maximum punishment is 3 years; further submits that dimensions of injuries in MLC depict, they were caused by pellets, prima facie, medical evidence belies the ocular account; contends that it is held in 2003 YLR 1915 mere abscondance is no ground for the refusal of bail if otherwise a case is made out of further inquiry; co-accused Muhammad Saleem having similar role was allowed bail by the learned trial Court on 16-2-2009 though bail granting order had been challenged by the complainant party before the Judicial Magistrate, who had allowed bail, therefore, the petitioners are entitled to the concession of bail. 5.On the other hand, learned D.D.P.P. assisted by the learned counsel for the complainant vehemently opposed the grant of bail to the petitioners on the ground that petitioners are nominated in the F.I.R. with specific role; the petitioners are found guilty during the investigation and they remained fugitive from the law for more than six months; challan has been submitted before the learned trial Court; both the injured P.Ws. have suffered fire-arm injuries at the hands of the petitioners with fire-arm weapon (pistol .30 bore) and intention of the petitioners could easily be gathered, prima facie, constitute the offence under section 324, P.P.C; sections 452, 342, P.P.C. were prima facie attracted against the petitioners as they have been declared guilty by the police; petitioners are record-holder but did not produce any F.I.R; recovery of weapon of offence is effected from the Ghulam Yasin and nothing was recovered from the other co-accused, Rahim Bukhsh; sufficient material on the police file in the shape of statements of P.Ws. to connect the petitioner with the commission of offence, therefore, petitioners are not entitled to the concession of bail.

6. I have heard the learned counsel for the parties at length and perused the record.

7. No weapon of offence was recovered from the petitioners. Offence under section 324, P.P.C. is not prima facie attracted because fire-arm injuries were caused on non-vital parts of the bodies of the injured. Section 452, P.P.C. was also not made out because hotel was not a residential place. Petitioners tried to record their cross-versions but they filed private complaint, which is pending before the learned trial Court. Instant case needs further inquiry. Petitioners are no more required by the police for the purpose of investigation or recovery. Petitioners are behind the bars since their arrest and their further incarceration in the jail would not serve any useful purpose. Reliance can be placed on the judgment of Honourable Supreme Court reported as Tariq and others v. The State PLD 1995 SC

34. A few lines from the referred Tariq Bashir's case (supra) are reproduced hereunder:

"The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run."

8. Resultantly, this petition is accepted and the petitioners are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 each with one surety each in the like amount to the satisfaction of learned trial Court. However, observations made above are tentative in nature, will not prejudice the case of either side during the trial. H.B.T./R-8/L Bail granted.