2009 PLP 141 (MLD)

DOST MUHAMMAD KHAN, J.

Petitioner No.1 Niaz and petitioner No.2 Shah Nawaz, seek bail in case F.I.R. No. 888, dated 17-9-2007 registered for crimes under sections 324/34, P.P.C., by Police Station Havelian.

2. Arguments of the learned counsel for the parties heard and record perused.

3. The occurrence took place at 4 p.m. on 17-9-2007 while the report was lodged by Dildar, complainant, in RHC Havelian at 8-10 p.m. (2010 hours) and alleged that at the relevant time, he along with his sister Mst. Parveen and niece Mst. Nasreen Bibi was proceeding to Abbottabad and on reaching near the village Mosque, he saw the two petitioners who started abusing him and during the said course, the sister and niece left for house and he followed them. After reaching the house, the complainant came back to the spot, where Niaz, petitioner, armed with .12 bore gun was present. One Akbar commanded him to fire at the complainant and the accused fired at him as a result he sustained multiple injuries on different parts of his body. The complainant further alleged that on his hues and cris, his mother Mst. Zulikha Bibi reached the spot who was fired at by petitioner Shah Nawaz with .12 bore gun and she also sustained many injuries. The occurrence was witnessed by Mst. Parveen and his father Muhammad Yousaf. Motive for the crime given in the F.I.R. is a dispute over the land.

4. In this case a look at the medico-legal reports of the two injured victims would show that both have sustained injuries almost on non-vital parts of their persons except one or two injuries and the nature of the same is still not certain. None of the pellets got exist from the bodies of the two victims and keeping in view the comparative statement of the number of injuries on each individual victim and one fire shot attributed to each of the petitioners, the whole affair becomes disturbing one for judicial mind. The possibility that single shot was fired at both by using hunter cartridge containing more than one hundred pellets of a very small size cannot be ruled out altogether and besides that the distance shown in the site-plan is fifty or fifty five paces which comes to round about 160 to 180 feet, therefore, the damages caused was lesser if not negligible and this fact clearly tell about the intention of the accused, not to kill the victims. The conduct of the complainant is also not above board as after having been confronted by the accused and grossly abused in an aggressive manner, his coming back to the spot could not be held to be in accordance with natural human behaviour as once he made a retreat to his house, a secured place, then in ordinary course, he was not supposed to expose himself to an ensuring danger.

5. While dealing with bail matter, the Court has to tentatively assess as to what type of weapon accused was wielding at the time of occurrence i.e. whether it was dangerous, lethal or was of a very low velocity. Similarly it is to be seen whether the accused has used the weapon light or vigorously and the resulted damage caused to the victim. In ordinary circumstance use of firearm in committing a crime is associated with intention to kill but all the materials available must be fairly seen. In view of the above facts which are much relevant and cannot be conveniently ignored because it has been held by the apex Court in many celebrated judgments that in bail matter the liberty of a person is always involved, therefore, the Court cannot fold up its hand just to rely what has been stated in the F.I.R. but to see and tentatively assess all the materials on record. It is also a consistent view that if the injury caused to the victim either on no-vital part or is neither grievous nor dangerous to life, then bail is ordinarily granted to the accused in the absence of strong exceptions. In the case of Ghulam Mohyuddin v. Ikramul Haque and others (PLD 1968 Lahore 1000) the Hon'ble Lahore High Court has laid down such principle in a very judicious and careful manner.

6. The complainant has deliberately avoided to go to the Police Station or to the Police Post situated almost at the same distance or some what little distance but it was the Police which arrived in the RHC for taking his report. The last report given by the radiologist about the nature of injuries do not show that any damage was caused to the internal organs or the bones of the two victims is another factor favouring the grant of bail. From the crime spot no incriminating articles were recovered, thus, many aspects surrounding the occurrence are highly debatable. The bodies of two victims were scanned but the reports do not indicate that foreign bodies were available in side which is another doubtful circumstances adversely reflecting on the prosecution case. Both the victims were not admitted in the Hospital and let to go home which fact by itself speaks that the injuries sustained by them were almost simple needed no treatment inside the Hospital.

7. The complainant on his return to home with the assistance of his father Muhammad Yousaf, eye-witness in this case, retaliated and killed Mst. Parveen, the sister of the petitioner Shah Nawaz two days after the present occurrence and did not wait for the Court of law to do justice in the matter. This shows that the complainant party is desperate and did not spare a young lady who was having no hand in the present occurrence: The complainant and his father is now under detention in the above murder case, vide F.I.R. No. 893, dated 19-9-2007 registered by the same Police Station.

8. For what has been discussed above, this petition is allowed and the petitioners are granted bail in the sum of Rs.2,00,000 with two local and reliable sureties each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate.

9. The above assessment of facts, shall in no manner influence the mind of the trial Court. H.B.T./182/Pesh. Bail granted.