2013 PLP 2551 (YLR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition filed in terms of section 497, Cr.P.C. Faisal Ayub/petitioner has sought for his post-arrest bail in case F.I.R. No.291, dated 27-7-2012, offence under sections 302, 148, 149, P.P.C., registered at Police Station Sahianwala, District Faisalabad, at the instance of Ahsan Akhtar son of Abdullah, complainant/respondent No.2.

2. Prosecution story in brief, as per contents of the crime report, is that on 27-7-2012 at 1-00 p.m. (noon) when the complainant along with Murad Ali, Muhammad Ali and Muhammad Akram was going to his village, all of a sudden the petitioner armed with kalashnikov along with other co-accused having already ambushed there attacked upon them. On the raising of lalkara by Muhammad Waris and Idrees, the petitioner made fire shot with kalashnikov upon Murad Ali, which landed on his back. The other accused also made firing landing on different parts of body of Murad Ali, who succumbed to the injuries at the spot.

3. Learned counsel for the petitioner while addressing the Court submits that the petitioner is innocent and has falsely been involved in the instant case against the actual facts and circumstances. Learned counsel vehemently contends that the complainant while lodging the crime report thereby exaggerating the story involved as many as twelve persons out of whom ten were found innocent during the course of investigation as such bulk of prosecution version was found false, which aspect alone makes the prosecution case against the petitioner one of further inquiry. Learned counsel further submits that as per postmortem examination report injury ascribed to the petitioner on the person of deceased is an exit wound, hence medical evidence is in contradiction with the occular account. Adds that according to contents of the crime report the petitioner was armed with kalashnikov, whereas, during the course of investigation pistol was recovered on his pointing out. Learned counsel finally contends nevertheless deeper appreciation of facts is not made at bail stage, however, all the facts and circumstances floating on the record make the prosecution case against the petitioner squarely one of further inquiry into his guilt falling under section 497(2), Cr.P.C, therefore, he is entitled to the concession of post-arrest bail.

4. As against above learned Deputy Prosecutor-General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the petitioner. Learned counsel representing the complainant submits that the petitioner is well nominated in the promptly lodged F.I.R. with specific role. While referring to dictum of law laid down in the case of MUMTAZ v. THE STATE (2012 SCMR 556) learned counsel for the petitioner urges that even in presence of contradiction in medical and occular account, the accused cannot be benefited out of the same at bail stage. Recovery of motorcycle used during the occurrence, learned Deputy Prosecutor-General submits, also establishes link of the petitioner with the occurrence. When confronted, he however, conceded that there is no proof available on record regarding the ownership of the motorcycle. It is finally argued that offence against the petitioner entailing capital punishment, he is not entitled to the relief sought for.

5. I have heard the arguments advanced by learned counsel for the petitioner, learned counsel for the complainant, as well as, learned Deputy Prosecutor-General and gone through the record available on file.

6. There is no denial to the fact that in the crime report name of the petitioner duly figures in the relevant column of accused, however, I am afraid this Court has to see from the facts and circumstances whether case of the petitioner to the extent of grant of bail is made out or not. As per contents of crime report, the petitioner along with other co-accused while armed with kalashnikov fired upon the deceased, however, as per postmortem examination report, the injury ascribed to the petitioner is an exit wound. Moreover, during the course of investigation pistol was recovered on the pointing out of the petitioner. During the course of arguments it transpired that out of twelve nominated accused persons ten were found innocent, as such bulk of prosecution version was smashed during the course of investigation and such findings have not been challenged before any higher forum. All these facts when put side-by-side make the case of the petitioner one of further inquiry falling under subsection (2) of section 497, Cr.P.C.

7. As far as dictum of law laid down in the case of MUMTAZ v. THE STATE (2012 SCMR 556) as referred by learned counsel for the complainant is concerned the same is quite distinguishable from the facts of the instant case as in this case not only injury ascribed to the petitioner is an exit wound rather nevertheless in the crime report it was alleged that the petitioner was armed with kalashnikov, however, during the course of investigation pistol was recovered on his pointing out coupled with the fact that out of twelve nominated accused persons, ten have been found innocent during the course of investigation and such findings of the Investigating Officer have not been challenged before any higher forum. While dealing a similar question with regard to contradiction in medical and occular evidence, in the case of Pir Bux v. The State (2012 SCMR 1955), the august Supreme Court of Pakistan had extended the concession of bail in favour of the accused. Similar view was affirmed in Bagh Ali's case (PLD 1973 SC 321).

8. As far as contention of the learned Deputy Prosecutor-General that offence against the petitioner entails capital punishment, therefore, he is not entitled to grant of relief prayed for is concerned, suffice it to say that in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), the august Supreme Court of Pakistan has held that when otherwise case against the accused is covered under subsection(2) of section 497, Cr.P.C. he is entitled to the concession of bail as a matter of right. The petitioner is behind the bars since the date of his arrest and his person is no more required by the police for further investigation. Needless to mention that liberty of a person is the constitutional/ guaranteed right and one cannot be kept behind the bars for an indefinite period merely on the basis of bald allegations.

9. For the foregoing reasons, this Court is persuaded to hold that there exist sufficient grounds to accept this bail petition. Resultantly, Faisal Ayub/petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court. MWA/F-15/L Bail granted.