2010 PLP 1055 (YLR)

IJAZ AHMAD CHAUDHRY, J.

Abdul Sattar son of Shafi/petitioner has sought post-arrest bail in case F.I.R. No.242, registered at Police Station City Pattoki, District Kasur, on 12-4-2009, for offences under sections 324/34, P.P.C.

2. According to F.I.R. the allegation against the petitioners is the he after raising Lalkara fired with his 30-bore pistol, which hit Ghulam Mustafa deceased on his right flank, while the fire made by Abid Ali co-accused had hit the deceased on the forehead near the left eye. The motive behind the occurrence was that the deceased was an accused in the murder case of the brother of Abid Ali co-accused, who was released due to compromise, but the accused nourished grudge in their minds.

3. Learned counsel for the petitioner submits that besides raising Lalkara the role of causing firearm injury on the right flank of the deceased has been attributed to the petitioner, which injury is not borne out from the post-mortem report of the deceased; that the petitioner has been declared innocent during investigating; that no recovery has been effected from the petitioner; that according to report of the Forensic Science Laboratory, empties recovered from the spot had been fired by one and the same weapon; that actually motive was attributed to Abid Ali co-accused as Ghulam Mustafa deceased had murdered real bother of said Abid Ali; that petitioner is maternal uncle of Abid Ali and has been involved in this case merely for his relationship with Abid Ali by widening the net; that the present occurrence had taken place in front of Qadir CNG Station and Mukhtar Ahmad, Gunman, of the said Station has got recorded statement under section 161, Cr.P.C. on 6-5-2009 before the Investigating Officer, wherein he stated that only one person had fired on the deceased; that statement of said Mukhtar Ahmad has made the case of the petitioner one of further inquiry; that neither any complaint has been preferred by the complainant nor any application for transfer of investigation has been moved by him; and that Challan has been submitted in the Court. The learned counsel has relied upon 2007 SCMR 482 to contend that the petitioner is entitled to bail.

4. On the other hand, learned counsel for the complainant has opposed this application and stated that not only the petitioner had raised Lalkara but on his order, his nephew Abid Ali had fired at the deceased, which hit the deceased on his forehead i.e. on the vital part of body; that second fire on the right flank of the deceased is attributed to the petitioner; that the Doctor has declared injuries Nos. 1 and 3 the cause of death; that according to F.I.R. injury No.3 is assigned to the petitioner; that two empties were recovered from the spot; that opinion of the police is not binding upon the Court; that charge has been frame and the witnesses appeared on the last date, but the case was adjourned due to non-availability of the learned counsel for the petitioner.

5. Learned DPG, while opposing this application, has supported the arguments advanced by learned counsel for the complainant.

6. I have heard the learned for the parties and gone through the record.

7. Though the petitioner is named in the F.I.R. with the role of raising Lalkara and firing at the deceased but he has been found innocent during investigation. No doubt opinion of the police is not binding upon the Courts but it can be considered for the pursue of grant of bail if the same is based on cogent reasons and strong evidence. As per F.I.R. the occurrence had taken place near Qadar CNG Station. During investigation one Mukhtar Ahmad Gunman, Qadar CNG Station has appeared before the Investigating Officer and made statement under section 161, Cr.P.C. to the effect that at the time of occurrence he was present at the CNG Station, when a man along with one woman was going on a motorcycle and then one person stopped them, who fired at the deceased. Mukhtar Ahmad is an independent witness, N,hose presence at the spot being the Gunman cannot be doubted. There is nothing on the record to show that he has made such a statement for some ulterior motive. On the basis of said evidence the petitioner has been declared innocent. The opinion of the Investigating Officer is not based on surmises and conjectures. Two empties allegedly recovered from the spot, according to the report of the Forensic Science Laboratory, had been fired with one weapon. The motive was also not attributed to the petitioner, which was specifically attributed to Abid Ali co-accused. For the time being the petitioner has succeeded in making out a case of further inquiry, who cannot be disallowed bail merely for the reasons that the trial has commenced as the benefit of doubt, if is made out at any stage of the case, has to go to the accused and bail cannot be withheld as punishment.

8. Consequently, the application is accepted and the petitioner is admitted to bail, subject to his furnishing bail bonds in the sum of Rupees One Lac (Rs.1,00,000) with two sureties, each in the like amount, to the satisfaction of the trial Court. The trial Court is directed to conclude the trial within ninety days after receipt of this order.

9. Office to send a copy of this order to the learned trial Court forthwith. H.B.T./A-10/L Bail granted.