2007 PLP 228 (YLR)

HASNAT AHMAD KHAN, J.--This single order shall dispose of Cr

1. Misc. No.2922-B of 2006 filed by Muhammad Sultan and Shah Wali petitioners as also Criminal Miscellaneous No.3436-B of 2006 filed by Muhammad Sharif petitioner as all the petitioners in these two petitions are co-accused in the same F.I.R.

2. Muhammad Sultan, Shah Wali and Muhammad Sharif petitioners seek bail after arrest in case F.I.R. No.320 dated 22-8-2005 under sections 324/427/148/149, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997 registered at Police Station City Lodhran.

3. The brief facts of the prosecution case as narrated by Noor Shah complainant in the F.I.R. are that on 22-8-2005 at about 8-15 p.m. he was coming back on his motor car .from Nadeem Cotton Factory along with his brother Ain Ullah and Faiz Ullah and when they reached near Railway-crossing Kaloo Wala, all of a sudden a white coloured Corolla car model 1976 over-took the car of the complainant and stopped in front of the said car due to which the complainant party had to stop their car. The complainant found five persons in the car of the accused party out of which two accused, namely, Sultan and Muhammad Sharif petitioners alighted from the car. Both of them were armed with Kalashnikovs. The said persons were identified by the complainant in the head-lights of the car. It is alleged that both the said accused made straight firing due to which the complainant received fire-arm injury on his right arm and front and back screens of the car were also broken. Pieces of the broken glasses also caused injuries on the right arm and chest of the complainant. The complainant and his companions saved their lives by laying in the car. It has been further alleged in the F.I.R. that as a result of the said firing traffic was temporarily blocked and people of the vicinity got panic. The assailants fled away from the spot in their car after believing that the complainant party has been finished. The motive of the occurrence was alleged to be the previous enmity between the parties.

4. Learned counsel for the petitioners has contended that it was a night time occurrence; the accused were allegedly identified in the head-lights of the car as such the possibility of mistaken identity of the accused cannot be ruled out; that the complainant received only one fire-shot injury, nature of which shows that the offence under section 324, P.P.C. is not made out and rest of the offences which would be made out on the basis of the injury received by the complainant do not fall within _ the prohibitory clause of section 497, Cr.P.C.; that Shah Wali petitioner is not named in the F.I.R. and in the supplementary statement no overt act has been attributed to him; that according to the F.I.R. the accused were armed with Kalashnikov but no Kalashnikov was recovered from Shah Wali petitioner and only a pistol has been allegedly recovered from him; that the petitioners had allegedly resorted to firing with Kalashnikovs but there is only one fire-arm injury on the person of the complainant and that too on a non-vital part and none of rest of the alleged P.Ws. received any injury; that the fire-arm injury received by the complainant has not been specifically attributed to any of the petitioners thus the case of the petitioners is one of further inquiry and the petitioners are entitled to the grant of bail. 4-A. On the other hand learned counsel for the State assisted by the learned counsel for the complainant has opposed the grant of bail on the ground that Sultan and Sharif petitioners are nominated in the F.I.R. with specific role of firing as a result of which the complainant was injured. It has been further contended that the trial has already started. As far as Shah Wali petitioner is concerned it has been argued that he remained absconder and was arrested on 9-11-2005.

5. We have heard the learned counsel for both the parties and have also perused the record.

6. As far as Muhammad Sultan and A Muhammad Sharif petitioners are concerned, they have been nominated in the F.I.R. with specific role of firing with their Kalashnikovs as a result of which the complainant received an injury. The F.I.R. was promptly lodged obviating the chance of any false implication of the accused. They were identified in the head-lights of the car. Medico-legal certificate prima facie support the version of the complainant. Twenty four empties of bullets were recovered from the spot meaning thereby that the said petitioners had resorted to reckless firing and due to the said act of the petitioners traffic remained blocked causing sense of insecurity in the minds of the public. The parties are inimical towards each other. Element of common intention is there. As far as nature of injuries is concerned, that would not help the case of the petitioners as they have targeted the complainant with Kalashnikovs and thus prima facie the possibility of intention of murderous assault cannot be ruled out.

7. In view of what has been noticed and discussed above, we do not find it a fit case for grant of bail to Muhammad Sultan and Muhammad Sharif petitioners. Criminal Miscellaneous No.2922-B of 2006 to the extent of Muhammad Sultan alias Spain petitioner and Criminal Miscellaneous No.3436-B of 2006 filed by Muhammad Sharif petitioner are therefore, dismissed.

8. So far as Shah Wali petitioner is concerned, he was not named in the F.I.R. Even in the supplementary statement no overt act has been attributed to him. He is stated to be close relative of Muhammad Sultan and Muhammad Sharif petitioners, therefore, in view of the enmity between the parties chance of false implication cannot be ruled out. To his extent it is a case of further inquiry. Regarding the contention raised by the learned counsel for the state as well as by the complainant that he remained absconder, suffice it to say that proceedings of sections 87/88, Cr.P.C. in this case have not been initiated. He was arrested on 9-11-2005 and is behind the bars since then. Even otherwise it is settled law that refusal of bail on the basis of absconsion of the accused is a matter of propriety and practice and the accused becomes entitled to bail as a matter of right if case of further inquiry is made out and in such an eventuality the bail is not granted by way of grace or concession. Likewise the commencement of the trial does not debar the Court from granting bail to the accused if case of further inquiry is made out. To arrive at this conclusion we are fortified by the principle laid down by the Honourable Supreme Court in Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585) wherein it has been held that if the Court finds that two essential conditions contained in section 497(2), Cr.P.C. are satisfied the accused shall become entitled to bail as of right and when the accused becomes entitled to bail as of right under section 497(2), Cr.P.C. bail cannot be withheld on the ground of practice. Likewise it has also been held by the Honourable Supreme Court in Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) that notwithstanding the abscondance, an accused might be released on bail when he becomes entitled to bail as of right under section 497(2), Cr.P.C. Relying upon the said judgments of the Honourable apex Court, this Court has held in the case of Munir v. The State (2002 MLD 712) that in a case calling for further inquiry into the guilt of an accused, bail is to be granted to such an accused as of right and not by way of grace or concession and that bail sometimes can be refused to an accused on the consideration of commencement of trial but that consideration is based purely upon propriety. Whenever a question of propriety is confronted with a question of right, the latter must prevail and commencement of a trial would pose no insurmountable hurdle in the way of bail when the accused succeeds in making out a case of further inquiry. As has been held above, the case of Shah Wali petitioner requires further inquiry and thus falls within the ambit of section 497(2) Cr.P.C. as such his abscondence would not become a ground for refusal of his bail.

9. Criminal Miscellaneous No.2922-B of 2006 to the extent of only Shah Wali petitioner is allowed and he is ordered to be released on bail subject to his' furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.

10. It is however observed that abovementioned findings are tentative in nature and would not prejudice the case of either party. H.B.T./M-644/L????????????????????????????????????????????????????????????????????? Order accordingly.