2009 PLP 577 (YLR)

RAJA SAEED AKRAM KHAN, J.

Petitioner seeks his post arrest bail in case F.I.R No.87 dated 4-5-2007, registered under sections. 302, 337-L-I. 148 & 149, P.P.C, at police station Tarnol (Islamabad).

2. Briefly, allegation against the petitioner is that he while armed with danda, along with his co-accused, made a murderous assault on complainant party. During occurrence he made a danda blow on the head of Waseem Kazmi, due to which he became injured.

3. Learned counsel for the petitioner has argued that the petitioner is innocent; that one of the eye-witness namely Muhammad Hanif has not supported the prosecution version; that there is conflict between ocular and medical accounts; that it is a case of cross version; that the occurrence was not pre-planed, but all happened in spur of moment; that three persons from accused/petitioner's side were also injured and in this regard a case under sections 337-F-I, 337-F-II, P.P.C. was registered; that the police tried to give favour to the complainant party, while interpolating the record, as a result of which a case was also registered against the police officials; that the injured expired after 45-days of the occurrence, and there was no definite opinion regarding the cause of death; that death was caused due to some complications, which shows that he was not properly treated in hospital; that the complainant of the case has also expired and other P.W. Muhammad Hanif has exonerated the petitioner; that the petitioner had exercised his right of defence during the occurrence; that injuries attributed to the petitioner's side show that complainant side was aggressor.

4. Conversely, learned counsel for the complainant has strongly opposed this bail petition, on the grounds that the specific role is attributed to the petitioner, with specific injury and death was caused due to head injury; that deeper appreciation of evidence is not warranted at bail stage and Court has to see only the material collected by the prosecution in the shape of statements under section 161, Cr.P.C. and allegation levelled in F.I.R, tentatively; that the injuries caused to the accused/ petitioner's side were simple in nature and no serious injury was caused to them, however, he has conceded that cross case was registered under sections 337-F-I, 337-F-II, P.P.C. and a case was also registered against the police officials. He has added that arguments advanced by learned counsel for the petitioner are not based on record; that trial is in progress, wherein 4 P.Ws. have been recorded and 7/8 P.Ws. are to be recorded; that Hanif P.W. give concession to the petitioner /accused, who was got declared as hostile witness.

5. Learned Federal Counsel has adopted the arguments advanced by learned counsel for the complainant.

6. I have heard arguments advanced by both sides and perused the record.

7. There is no denial that one of the P.Ws. namely Muhammad Hanif, while appearing before the Court, has not supported the prosecution version and exonerated the petitioner/accused, which makes the case as that of further inquiry. Complainant of this case has expired, whereas, other star witness of the prosecution has not supported its version. Injuries of accused/petitioner side are not denied, regarding which cross case was registered. It is not denied that a case was registered against the police officials on account of tampering with the record. Commencement of trial does not bar the grant of bail, if case falls within the ambit of further inquiry. Reliance can be placed upon the case re: Muhammad Ismail v. Muhammad Rafique and another, reported as PLD 1989 SC 585, wherein it was observed by the Honourable Apex Court, as under:

"Grant of bail when case is fixed for hearing

Practice of the superior Courts is that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and matter is often left to the discretion of the trial Judge and this practice is directly relatable to the "question of prejudice." When the Court finds that two essential conditions contained in S.497 (2), Cr.P.C. are satisfied the accused shall become entitled as of right to bail

When an accused person becomes entitled as of right to bail under S. 497(2), Cr.P.C., bail cannot be withheld on the ground of practice, because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right." Further reliance can be placed upon the case re: Muhammad Mushtaq and another v. The State through Advocate General AJ&K and another, reported as 2007 PCr.LJ 1542. The petitioner is behind the bars since his arrest i.e. 22-5-2007 and is still languishing in the jail. Although, trial is in progress, but still 7/8 P.Ws. have to be recorded, which exercise will definitely take a time. No useful purpose will be served by keeping the petitioner behind the bars, in such like case.

8. As a result of above discussion, this petition is accepted and the petitioner is admitted to bail, subject to furnishing bail bonds valuing Rs.1,00,000 (one lac) with two sureties, in the like amount to the satisfaction of learned trial Court.

9. Before parting with the order, it is observed that while deciding the main case, learned trial Court would not be influenced by any observation made in this order. H.B.T./I-4/ISL Bail granted.