2022 P Cr (PLP)

RAJA SHAKEEL AHMED, J.

Petitioner/accused Kima son of Shah Khalil resident of Bathi Tehsil Gupis District Ghizer applied for bail after he failed to secure his such relief from Court of learned District and Sessions Judge Ghizer, In Case FIR No. 36/2020 dated 11/08/2020 under sections 324/34, P.P.C., registered at Police Station Gupis Tehsil Gupis, district Ghizer.

2. Facts of the case as mentioned in the FIR are that on 11/08/2020 the complainant and his brother after attending the civil case in Gupis Court with the accused party were going back to Gahkuch, at about 12:30 hours when they reached "Tali Dass" the petitioner/accused and his father Shah Khalil attempted to commit murder of complainant namely Syed Alam by firing on him and his brother with pistol. Complainant and his brother survived while bullet hit the tyre of his motorcycle. After the occurrence, both the accused decamped from scene of occurrence holding pistols in their hands. The offence was witnessed by PWs Adil, Shoaib Alam and Muzamil Hussain. Motive behind the occurrence is alleged a land dispute between the parties subjudice in Civil Court Gupis.

3. The learned counsel for petitioner contended that the petitioner/accused has falsely been implicated in the instant case by the local police, on the behest of the complainant to get the ulterior motives; as the petitioner is in a civil litigation with the complainant party and facing the case before Civil Judge Gupis, as such the complainant wants to harass the petitioner and his family and cooked a story for implicating them in a criminal case. The FIR has been lodged after two (2) hours delay of the occurrence without any explanation thereto. The learned counsel also argued that the sections inserted in the FIR do not attract as per contents narrated in the FIR. The complainant party involved the father of petitioner also as co-accused by inserting section 34, but the co-accused is released by police under section 169, Cr.P.C. The learned counsel asserted that the story narrated in the FIR is doubtful and case of the petitioner falls under the ambit of further inquiry as neither the complainant nor his brother was injured in the occurrence, hence the section 324, P.P.C. is not applicable, investigation is completed and during the trial the star witness/eye-witness shuaib Alam during his deposition didn't implicate the present accused and during cross-examination he admitted that, I have neither seen the person nor I know said person who conducted firing. The learned counsel Mr. Javeed Ahmad Advocate further argued that as per contents of the FIR the complainant was at the mercy of the accused if he had any intention to kill the complainant no hurdle was there to accomplish the task, hence the applicability of section 324 requires further inquiry he also contended that the co-accused is released by the police under section 169, Cr.P.C. hence the rule of consistency applies truly in the instant case. Lastly the learned counsel for petitioner prayed for grant of bail.

4. Adversely, the learned DAG contended that the petitioner directly nominated in the promptly lodged FIR and does not call for any leniency at this stage. The motive behind the occurrence is narrated by the complainant in the FIR that the petitioner and complainant party were in a civil litigation, which shows the intention of the petitioner. Challan of the case has been submitted before the Court and trial of case is underway. At this stage the petitioner is not entitled for grant of bail. Finally, the DAG prayed for dismissal of the petition.

5. I have heard the arguments advanced by the learned counsel for the parties and perused the FIR of the case.

6. On tentative assessment of material available on record, the fire shot as alleged in the FIR didn't hit the complainant moreover the accused petitioner did not repeat the overt act to its extreme; although the complainant and his brother were at the mercy of accused. Thus in view of sufficient time to repeat the firing, whether section 324, P.P.C. can be invoked or not is question, which can only by resolved by the trial Court after taking consideration the relevant evidence to be recorded in this respect, hence prima facie a case of further inquiry is made out in favor of petitioner, as envisaged in subsection (2) of section 497, Cr.P.C. From perusal of FIR it also transpires that the FIR is lodged after considerable delay of 2 hours without any explanation, which create doubt of being deliberated and concocted. Admittedly the police released the co-accused under section 169, Cr.P.C. as such rule of consistency applies in the case. From perusal of the statement of eye-witness Shuaib Alam son of Gul Jan recorded before the court it transpired that the so called eye-witness is a minor, who stated in his examination in chief that "On the day of occurrence we were playing football near the place of occurrence. Two persons conducted firing." During cross-examination the said witness admitted by holding that "It is correct that I have neither seen the person nor I know said person who conducted firing." The deposition of the above witness contradicts the statement recorded by the police during investigation under section 161, Cr.P.C.

7. For what has been discussed above, the petition in hand is accepted. Petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs 300,000/ (Three Lacs) with two sound and solvent local sureties each in the like amount to the satisfaction of trial Court. Petition allowed. File. SA/10/GB Bail granted.