2014 PLP 609 (MLD)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition Muhammad Arshad/petitioner seeks his post-arrest bail in case F.I.R. No.103, dated 13-2-2012, offence under sections 302, 324, 109, 148, 149, P.P.C., read with Section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Kotwali, District Jhang, lodged on the complaint of Mazhar Hussain Shah son of Ameer Shah, complainant/ respondent No.2.

2. Facts of the case in brief, as per contents of the crime report, are that on 13-2-2012 the petitioner while armed with pistol along with his co-accused also armed with firearms, by constituting an unlawful assembly, assaulted upon the complainant. During the occurrence Waris Shah was done to death and two others sustained injuries. The petitioner has been assigned the role of inflicting firearm injury at cheek of Qaiser Shah.

3. Learned counsel for the petitioner while addressing the Court submits that the petitioner is innocent and has falsely been involved in the instant case against the actual facts and circumstances due to previous enmity and being close relative of the principal accused. Learned counsel vehemently contends that as per crime report the petitioner has been assigned the role of inflicting firearm injury on the cheek of Qaiser, injured P.W. Learned counsel while drawing the attention of the Court to the MLR of the injured annexed with the petition submits that the injury ascribed to the petitioner is a grazing wound, which attracts the provisions of section 337-A(i), P.P.C., for which maximum punishment provided under the statute is only one year. Adds that during the course of investigation, the Investigating Officer found the accusations contained in the crime report false to the extent of the petitioner and opined that he might have abetted the occurrence. This fact alone, learned counsel for the petitioner urges, makes the prosecution case against the petitioner one of further inquiry into his guilt falling under subsection (2) of section 497, Cr.P.C. It is next argued that during the course of investigation nothing was recovered from the petitioner. Further submits that the petitioner is first offender, who is behind the bars since the date of his arrest and the investigation being complete his person is no more required by the police, therefore, he is entitled to the concession of post-arrest bail.

4. As against above, learned DDPP assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the petitioner. Learned counsel for the complainant submits that the petitioner is nominated in the promptly lodged F.I.R. with a specific role of inflicting firearm injury on the person of Qaiser Shah, P.W. Adds that during the occurrence one innocent person lost his life, whereas, two others sustained injuries. Learned counsel for the complainant further submits that nevertheless the Investigating Officer has opined that the petitioner did not actively participate during the occurrence, however, being dissatisfied with the investigation the complainant filed complaint in which the petitioner has been summoned. In these circumstances, learned counsel for the complainant submits, as the petitioner is also equally liable for vicarious liability coupled with the fact that the case against him entails capital punishment, he is not entitled to the concession of bail.

5. Arguments advanced pro and contra have been heard. We have also gone through the record available on file.

6. Perusal of record reveals that in the crime report the petitioner has been assigned the role of making fire shot, which landed on the cheek of Qaiser Shah, P.W. and as per MLR of the injured, the injury ascribed to the petitioner is a grazing wound. An important aspect of the case is that during the course of investigation the Investigating Officer opined that the petitioner did not actively participate during the occurrence and at the most he might be an accused of abetment. Both these facts when put side-by-side make the prosecution case against the petitioner squarely falling within the ambit of further inquiry falling under section 497(2), Cr.P.C. Moreover, although the petitioner remained on physical remand for nine days, however, nothing was recovered on his pointing out. Nevertheless learned counsel for the complainant apprised the Court that in the complaint filed by the complainant the petitioner has been summoned, however, admittedly veracity of the prosecution accusations shall be determined during the course of trial after recording the prosecution evidence.

7. As far as contention of the learned counsel for the complainant that offence against the petitioner entails capital punishment, therefore, he is not entitled to grant of relief prayed for is concerned, suffice it to say that in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), the august Supreme Court of Pakistan has held that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. he is entitled to the concession of bail as a matter of right. The petitioner is stated to be first offender and behind the bars since the date of his arrest. Moreover, his person is no more required by the police for further investigation.

8. For the foregoing reasons and while humbly placing reliance on the dictum of law of august Supreme Court of Pakistan referred to above, we have been persuaded to allow this petition, as a consequence whereof Muhammad Arshad/petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial court. MWA/M-36/L Bail granted.