2009 PLP 164 (MLD)

ZAFAR IQBAL CHAUDHRY, J.

Through this petition under section 498, Cr.P.C. Shahid Mehmood and Waseem Abbas petitioners seek pre-arrest bail in case F.I.R. No.192, dated 3-7-2008 registered under section 324/34, P.P.C. at Police Station A-Division, Gujrat on the application of Sohail Aslam.

2. The brief allegation in the F.I.R. is that on 3-7-2008 at about 7-15 p.m. son of the complainant Fahad Aslam went to the shop of Electricity for purchasing electrical items and when he left the said shop suddenly the petitioners armed with .30 bore pistol along with two unknown persons came at the spot and straightaway fired with their pistols at his son but the fire was missed. Then Shahid Mahmood petitioner straightaway fired at Fahad Aslam with his pistol which hit on the left elbow and he was injured. The occurrence was witnessed by Malik Irfan and Asim, who rescued him from the clutches of the petitioners.

3. Learned counsel for the petitioners submits that the petitioners have been involved in this case on account of mala fide and enmity of the complainant who in connivance with the local police has manoeuvred a false case against the petitioners. According to him the allegation against Shahid Mahmood petitioner is that he fired with his pistol .30 bore which hit on the left elbow of Fawad Aslam. He further submits that according to the allegations levelled in the F.I.R. there was indiscriminate firing but no empty has been recovered from the spot which falsifies the version of the complainant. Not only that the injured at the time of medical examination when appeared before the Medical Officer made statement before him in which he has not levelled any allegation against the petitioners and according to the injured some unknown persons made firing and if this was the situation it is clearly proved that the case against the petitioner was on the basis of mala fide and the enmity and in such like situation according to him the petitioners are entitled to the grant of pre-arrest bail. Relies upon Faqir Hussain v. Asad Ali Khan and another (2003 PCr. LJ 518) and Shakeel Ahmad and another v. The State (2003 YLR 516).

4. Learned DPG on the other hand opposes this petition on the ground that the petitioners are named in the F.I.R. with specific role and the complainant has no enmity or grudge to falsely involve them in this case. It is further submitted that though the petitioners have joined the investigation yet the pistol is to be recovered from Shahid Mahmood petitioner. He also submits that keeping in view the role attributed to the petitioners they are not entitled to the pre-arrest bail.

5. I have heard the learned counsel for the parties and also perused the record. According to the F.I.R. specific motive has been alleged to the petitioner Shahid Mahmood that some days prior to the occurrence he had some quarrel with the injured Fawad Aslam which was patched up due to the intervention of the respectables of the locality but this version is belied by the statement of the injured made before the Medical Officer at 8-15 p.m. on 3-7-2008 immediately before registration of the case by his father. The statement made by the injured Fawad Aslam before the Medical Officer is reproduced here for ready reference:-- In the said statement the injured has not named the petitioners as accused persons. Keeping in view the motive alleged in the F.I.R. if the petitioners while present at the spot had made firing and also injured Fawad Aslam, then the injured would not have escaped to give their names in the above statement made before the Medical Officer who is an independent person and this fact cannot be ignored at this stage. Admittedly the petitioners have joined the investigation and pleaded their innocence before the I.O. The injury received by the injured is also not on the vital part of the body, which was kept under observation, but the Investigating Officer present in the Court submits that the injured is not appearing for X-Ray examination. The motive is a double-edged weapon, which cuts on both sides and it can also be a reason for false implication of the petitioners. Keeping in view the statement made by the injured before the Medical Officer in which he has not named the petitioner as accused persons the case of the petitioners prima facie falls within the purview of further inquiry and they cannot be sent behind the bars merely for the reason that the weapon is to be recovered, which would not advance the prosecution case any further as no empty was recovered from the spot. Hence this petition is accepted and the ad-interim pre-arrest bail already granted to the petitioner vide order, dated 21-7-2008 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court. H.B.T./S-130/L Bail confirmed.