2011 PLP 1047 (YLR)

ATTAULLAH KHAN, J.--Amirullah Shah son of Pir Sabir Shah, accused/petitioner, charged in case F.I.R. No.206 dated 12-6-2005 of police station Saddar, District Bannu, under sections 324, P.P.C., has filed this application for his release on bail.

2. Precisely facts according to. the F.I.R. are that on 12-6-2005 complainant/ injured Ehsanullah in the emergency room of Civil Hospital reported to the local police that he along with his father were busy in working in their lauded property when at 0815 hours, accused (present petitioner Amirullah) duly armed with Kalashnikov came there and asked why they had come to landed property and at the same time, he opened fire with his Kalashnikov with intent to kill them, as a result of which he was injured, however, his father escaped unhurt. Accused after the occurrence decamped from the spot. Motive behind the occurrence is stated to be dispute over landed property.

3. Learned counsel for the petitioner argued that though the accused/petitioner remained absconder but otherwise on merit he is entitled to the concession of bail. He further argued that seat of injury is on non-vital part of the body of injured and the accused/petitioner has no intention to attempt at the life of the injured, therefore, the case falls under section 337-N(ii), P.P.C.

4. On the other hand, the learned counsel for complainant argued that accused/petitioner is directly charged in the F.I.R., report is promptly lodged and the accused/petitioner remained absconder for about six years, therefore, the accused/ petitioner is not entitled to the concession of bail.

5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.

6. Perusal of the record reveals that the report was lodged after about 30 minutes of the occurrence. The accused/ petitioner is directly charged for effectively tiring. There is no proof on record that the complainant was having weak vision. The charge is duly supported by eye-witness. The accused/petitioner remained absconder for about six years and proceedings under section 512, Cr.P.C. has also been initiated and completed against him. This arguments of the learned counsel for the petitioner amounts to deep appreciation which is not appreciated by the Apex Court, the Court while dealing with matter of bail is only required to see whether the accused is connected with the commission of offence or not and deeper appreciation is not called for, which cannot be taken at this stage unless evidence is recorded by the trial Court in this behalf. As far as the arguments that the injuries arc on non-vital part, it would help the accused because injury on non-sensitive part would not bring the case out of the purview of prohibitory clause, similar is the case of abscondence though which is not an absolute proof of guilt but is an important factor to be considered even other circumstances are available against the petitioner. I may refer 2008 SCMR 678, wherein it is held: "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. This is correct that the disappearance of the petitioner after the occurrence for a long time, may not be essentially an evidence of his guilty but it is an important factor to be considered at the trial which is in progress." This Court, in case of similar facts reported in 2010 PCr.LJ 1780 (Peshawar), has held that:-- "The occurrence has taken place on 16-1-2009 and the accused/petitioner has been arrested on 9-5-2010. Thus he has remained fugitive from law for a considerably long period of about one year and four months which has not been plausibly explained. This indicates towards his guilt. He is charged for single injury caused to the complainant and the charge is supported by ocular account." The supplementary challan against the accused has been prepared by the prosecution. There is no question of mis- identity as both the parties are related to each other.

7. In such circumstances, 'I find no merit in this application for bail which is accordingly dismissed. H.B.T./103/P Bail refused.