2008 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

Learned counsel for the petitioner in support of this petition submits that according to first information report the petitioner had fired, which hit on the left side of back of chest of Nisar Hussain deceased but according to post-mortem examination report there is no injury on the right side of back of chest; that according to post-mortem said injury was mentioned as injury No.2; that the petitioner was declared innocent during investigation; that discharge report was prepared and the learned Magistrate agreed with the same, while on the application submitted by the complainant order passed by the learned Magistrate was set aside by the learned Additional Sessions Judge and the order passed by the learned Additional Sessions Judge was upheld by this Court. Learned counsel submits that keeping in view the facts that the injury is not available in the post-mortem examination report and petitioner was declared innocent during investigation, it is a case of further inquiry, which falls within the ambit of subsection (2) of section 497, Cr.P.C., thus, the petitioner is entitled to bail.

2. Conversely learned D.P.G. assisted by learned counsel for the complainant submits that occurrence took place on 17-1-2007; that application for grant of pre-arrest bail was dismissed by this Court vide order, dated 4-3-2006; that he was arrested on 28-372006; that charge has been framed and evidence has been summoned; that the petitioner was declared proclaimed offender; that specific role has been attributed to him; that there is no conflict between ocular account and the medical evidence; and that offence attracts the mischief of prohibitory clause of section 497(1), Cr.P.C. therefore, the petitioner is not entitled to bail.

3. I have heard the learned counsel for the parties and have gone through the record. The occurrence had taken place on 17-1-2004 at 4-45 p.m.; matter was reported to the police at 6-15 p.m. and the formal F.I.R. was recorded at 6-45 p.m. There is one deceased namely Nisar Hussain and two injured namely Tawakal and Javed. According to F.I.R., it was Abid Hussain petitioner who was armed with .12 bore gun and fired at Nisar Hussain, which hit on the back of left side of his chest. The relevant sentence of Urdu as mentioned in the F.I.R. is as under: While the relevant injury i.e. injury No.2 as mentioned in the post-mortem examination report is as under:-- "Multiple wounds of entry measuring .5 x .5 c.m. to 1 x 1 c.m. each sized. Eight in number, within an area 6 x 6 c.m. on the back of right side of chest, 3 c.m. from midline." According to diagram attached with this petition the injury is on the left side of back of chest of the deceased near spinal cord, so the position given in the diagram is in conformity with the version given in the F.I.R. If there is any variation it is minor in nature because one should not accept from a villager that he will give totally correct seat of injury. The petitioner remained absconder for two years. As far as the innocence of the petitioner is concerned, though his application for discharge was accepted by the learned Magistrate but the discharge order was set aside by the learned Additional Sessions Judge and the same was upheld by this Court. Charge has been framed and the evidence has been summoned. In these circumstances, no case for grant of bail is made out. This petition stands dismissed. N.H.Q./A-204/L Bail refused.