2006 PLP 3053 (YLR)

IJAZ AHMAD CHAUDHRY, J.--Through this application under section 497, Cr.P.C. the petitioner seeks post-arrest bail in case F.I.R. No. 359 of 2005, dated 3-9-2005 registered under sections 324, 337-F(i), F(v), L(ii), 148/149, P.P.C. at Police Station Mochi-wala, District Jhang on the statement of Muhammad Sharif, the complainant.

2. The brief of the case as alleged in the F.I.R. are that on 2-9-2005 at about 12 noon, Ansar Ali (brother-in-law of the complainant) was coming to the house of his sister, while the petitioner and Umar Draz (co-accused) armed with pistols .30 bore respectively were already present on the roof of their house. When the victim passed near their house at a some distance, Umar Draz (co-accused) raised a Lalkara to teach a lesson to Ansar Ali for not giving the hands of his sister to them and made a fire from his pistol which passed over the head of victim and the second fire was made by the petitioner which landed on the thigh of Ansar Ali, who fell down. The accused party also made firing towards the house of the complainant party. The witnesses altercated to the spot and the accused party along with women-folk started bricks batting from the roof-top. The motive behind the occurrence was stated to be dispute over giving of "Rishta" of two sisters of the victim, which was refused to the accused party, who are first cousins of the victim, but the same given to the complainant his brother Dilmeer. Moreover, earlier Muhammad Rafique brother of the victim was abducted, who was got recovered through the Sessions Court.

3. The learned counsel for the petitioner has contended that the petitioner is innocent and has been falsely involved in the present case; that Mst. Jannat Bibi, sister of the petitioner also received injury during the incident which was kept under observation and later on, declared Shajja-e-Hashmia falling under section 337-F(iv) and (v), P.P.C. and cross-version was only recorded after approaching the learned Additional Sessions Judge; that it is a case of double version and private complaint has also been filed by the accused party; that the occurrence was taken place at the spur of moment near the house of the petitioner and the other party was aggressor; that subsequently, the complainant (P.W.) has not supported the prosecution story narrated in the F.I.R., that the petitioner is behind the bars for the last more than 3 months and on the vital part of the victim and offence falls under section 337-F(v), P.P.C., which is punishable with 5 years' imprisonment only and it will be determined by the learned trial Court after recording of evidence that who was aggressor party.

4. The learned State counsel has opposed this bail petition on the ground that charge has already been framed and the case is now fixed for recording of evidence, but the petitioner till date has not engaged his counsel and delay in conclusion of the trial is attributed to the petitioner as on many dates, the prosecution witnesses appeared before the learned trial Court and even the examination-in-chief of P.W. 1 had been recorded, but cross-examination was reserved due to non-availability of the defence counsel and that the offence falls within the ambit of prohibitory clause of section 497, Cr.P.C.

5. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution.

6. According to the complainant, the` petitioner had fired upon Ansar Ali (victim) hitting on his thigh and the medical evidence supports the allegation levelled against the petitioner. Allegedly, the petitioner and his co-accused had launched a murderous assault upon Ansar Ali (victim) while armed with fire-arms and offence under section 324, P.P.C. prima facie is made out which false within the ambit of prohibitory clause of section 497, Cr.P.C. The petitioner has failed to make out case of further inquiry. If the complainant has resiled from his statement subsequently is of no avail as still there is evidence of the victim, whose present at the spot cannot be doubted. Merely, recording of cross-version is no ground to enlarge the petitioner on bail as he has been attributed specific injury with fire-arm on the thigh of the victim. Even otherwise, the trial has commenced and delay in the conclusion of the trial is not attributed to the prosecution as it has been claimed that the petitioner so far has not engaged his counsel before the learned trial Court and case is being adjourned due to non-availability of defence counsel. In such circumstances, it is not a fit case for the grant of bail to the petitioner. Consequently, this bail petition is dismissed. H.B.T./M-447/L Bail refused.