2004 PLP 1809 (YLR)

Petitioner Obaidullah Ameen through the instant petition has sought for post‑arrest bail in case F.I.R. No.483, dated 5‑8‑2002 under sections 324/148/149, P.P.C. registered with Police Station City, Hafizabad.

2. Briefly the prosecution case as per F.I.R. is that on 3‑12 2002 at about 4‑30 a.m. Munawar, Hafiz Obaidullah armed with pistol, Ayyaz with rifle Iftikhar Ahmad with rifle, Zubair with .12 bore gun, Ahsanullah with .12 bore gun and 7/8 other unknown persons, out of whom four were in police uniform and armed with lethal weapons broke open the outer window and door of the house of the complainant and jumped into the same by scaling over the wall. Hafiz Obaidullah raised Lalkara that Anwar be taught lesson for making collusive decision against him. He with the same‑pistol fired at Muhammad Anwar, the father of the complainant, which hit on his fight wrist. Ayyaz fired with rifle at Munir Ahmad which hit on his right arm. The other accused remained firing with their respective weapons and on the attraction of the Mohallah Dars to the spot, they fled away in a Toyota Hi‑Ace.

3. It has been contended on his behalf that he has falsely been roped in; that he during the investigation was found innocent and so the report of his discharge from the case was prepared but the same unluckily was not agreed to by the learned Illaqa Magistrate; that Munir Ahmad injured in the shape of a private complaint has, brought entirely different version against the complainant party than? that of the F.I.R. that the complainant and Ghulam Muhammad have injured him; that he has also made the statement under section 164, Cr.P.C. before the Magistrate on the same lines; that the injury attributed to him of injured Anwar was on the non‑vital part of his body, which suggests that he had no intention to kill him, if at all the prosecution story may be believed as it is; that the doctor has declared the injury of Muhammad Anwar attributed to him to be Ghavr‑Jaitah‑Hashimah, falling within the purview of section 337‑F(v), P.P.C. and the same is not covered under the prohibitory clause of section 497(1), Cr.P.C.; that no crime weapon has been recovered from him; that he is behind the bars; and that he is previous non‑convict. In support of bail plea reliance has been placed upon the case of Maqsood Javed v. The State 2001 PCr.LJ Lahore 2065, Akhtar Zaman v. The State 2001 YLR 2076 and Zafar Iqbal v. The State 2002 MLD 454 Lahore.

4. As against the same, the learned State counsel assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that he has been ascribed fire shot to injured Muhammad Anwar on his right wrist and the same resulted into the fracture of his radious bone; that he is a police official and so has managed to procure finding of innocence in his favour at the hands of his department fellows; that the report for his discharge from the case was not agreed to by the learned Magistrate concerned; that the offence under section 324, P.P.C. is attracted in the instant case as his intention to kill injured Muhammad Anwar is evident from the fact that he had fired with pistol at him though it luckily hit on his right wrist; that the complaint brought by the injured Munir Ahmad was withdrawn by him; and that there is sufficient incriminating material on the record to connect him with the crime. In this regard reference has been made to the cases of Muhammad Akram v. The State 1992 PCr.LJ 1378 Lahore, Ali Qadar v. The State 1998 PCr.LJ 516 Lahore and Arshad v. The State 1996 SCMR 1270.

5. I have carefully considered the submissions made from both the parties with the help of the available record.

6. The fact remains that the petitioner has been ascribed solitary fire shot to injured Muhammad Anwar, which hit on the non‑vital part of his body like the rights wrist. He did not repeat the fire to him.

7. Besides than this, the police record has also revealed that he during the investigation was found to be innocent and report for his discharge from the case was prepared but the same was not agreed to by the Magistrate concerned. Admittedly no crime weapon was recovered from him.

8. There is no denying the fact that Munir Ahmad, one of the injured persons has brought. the private complaint against the complainant, his father Muhammad Anwar/injured and one Ghulam Muhammad. He in the same has alleged that the complainant and the said Ghulam' Muhammad had fired at him.

9. The learned counsel for the petitioner has shown me the copy of his statement under section 164, Cr.P.C. before the Magistrate. In the same he has taken the same stance as has been indicated above.

10. All these facts essentially make his case as one of further inquiry into his guilt. So, the same amply falls within the purview of subsection (2) of section 497, Cr.P.C.

11. Besides than this, the injury of injured Muhammad Anwar attributed to him has been declared to be Ghayr Jaifah Hashimah attracting an offence under section 337‑F(v), P.P.C. The same does not fall within the prohibitory clause of section 497(1), Cr.P.C.

12. He is behind the bars and stated to be previous non‑convict, which has not been controverted by the other side.

13. In these circumstances, I find him entitled to bail. In this regard reliance has been placed upon the cases of Maqsood Javed v. The State 2001 PCr.LJ Lahore 2065, Akhtar Zaman v. The State 2001 YLR 2076 and Zafar Iqbal v. The State 2002 MLD Lahore

454. The case‑law referred to by the prosecution's side with all respect to the same is not applicable to the instant case for the above distinguishable facts and circumstances of the same than these cases.

14. It may be mentioned here that precedent in a criminal case will be applicable only when it will be on fours to it.

15. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum or Rs.1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned Illaqa/Duty Magistrate. H.B.T./O‑3/L Bail granted.