2011 PLP 2736 (YLR)

ATTAULLAH KHAN, J.

Javed, Haqnawaz and Sahib Jan, accused/ petitioners have filed this application for their release on bail in case F.I.R. No.539 dated 24-11-2010 of Police Station Saddar, District D.I. Khan registered under section 324/34, P.P.C.

2. Precisely facts of the case are that complainant Spin son of Qutab Din reported to police on 23-11-2010 at 2250 hours along with injured paternal cousin Muhammad Imran son of Alamgir in emergency room of Civil Hospital, D.I.Khan that he along with his paternal cousin Muhammad Imran were on the way to their home from the baitak of Mauladad after attending the marriage ceremony of Allah Nawaz. At about 0930 hours when they came out from the baitak and reached to the street, there Javid son of Ghulam Qasim, Haq Nawaz son of Sarfaraz and Sahib Jan son of Muhammad Ramzan resident of their village, who were identified by complainant in the light of bulb, were standing, armed with their firearm, who opened fires on the complainant party with intention to kill, due to which the complainant and his cousin received injuries. The occurrence has been witnessed by Karim Khan son of Abdur Raheem; Saif ur Rahman son of Faiz Rahman, who were coming in the same street. The motive is previous enmity between the parties and on report of complainant the ibid case F.I.R. was chalked out.

3. Learned counsel for the accused/petitioner argued that there is contradiction between the contents of F.I.R. and site plan, no empty and bulb have been recovered from the spot, therefore; according to learned counsel accused/petitioners the case is of further inquiry.

4. On the other hand, learned counsel for complainant argued that there are three eye-witnesses, F.I.R. is promptly lodged, the accused/petitioners are directly charged, therefore, the accused/petitioners are not entitled to the concession of bail.

5. Arguments heard and record perused.

6. Learned counsel for the accused/petitioners relied upon 2004 YLR 94, I have perused this case-law. In the reported case no specific role was attributed to the accused and the allegation against him was general in nature. The F.I.R. was also registered after the delay of two days. The facts of the present case are different as the F.I.R. is not lodged with delay and specific role has been attributed to the petitioner. So this case-law would not help the petitioners. He also relied, upon another case-law 2005 PCr.LJ 1437. The perusal of this case reveals that it was the case of ineffective firing and no body was injured while the present case is totally different because in the case in hand two persons have effectively been fired and sections injuries caused to them.

7. Perusal of record reveals that the occurrence took place at 0930 hours in the night while the report was lodged at 2250 hours. The report is lodged in reasonable time because the two injured had to be shifted to the hospital for treatment which has taken time. The accused are directly charged with effective role of firing which caused injuries to two persons. The motive is given and there is nothing on record to constitute mala fide on the part of complainant for false implication of the accused and accused were already known to the complainant, therefore, there is no question of mistaken identity. In this case there are three eye-witnesses including two injured. All of them have fully testified against the accused. The question as to whether the injuries caused on non-vital part would entitle the accused to the benefit of bail, reference may be made to the case MUHAMMAD RAFIQUE v. THE STATE 2008 SCMR 678 wherein it is held that the fact that there was no inquiry on the sensitive party of the body of complainant, would not bring the case out of the purview of the prohibitory clause of section 497, Cr.P.C. to claim the bail as of rule it is held that:-- "Learned counsel argued that notwithstanding the allegation of causing fire arm injury, the tenor of the occurrence would create doubt qua the liability of petitioner under section 324,??????? P.P.C. and case would fall within the ambit of subsection (2) of section 497, Cr.P. C. for the purpose of further inquiry into the nature of offence. The contention raised by the learned counsel has no substance. The petitioner is attributed direct role of firing; at the complainant as a result of which he sustained injuries on lower part of the body and mere fact that there was no injury on the sensitive part of the body, would not as such bring the case out of the purview of prohibitory clause of section 497, Cr.P.C. to claim the bail as of rule."??????

8. In short accused/petitioners are directly charged in the F.I.R. which is lodged within reasonable time ruling out false implication, the motive is given in the F.I.R., there is ocular evidence against the accused in the shape of injured witness. All these factors connect reasonably the accused/petitioners with the commission of offence. Hence, the instant bail petition is rejected. H.B.T./72/P???????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.