2022 PLP 1245 (SCMR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 05.08.2021 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant post arrest bail in case registered vide FIR No. 350 dated 09.05.2021 under sections 324/440/148/ 149/109, P.P.C. at Police Station Kunjah District Gujrat, in the interest of safe administration of criminal justice.

2. Briefly stated the allegation against the petitioner is that he along with other co-accused while armed with rifle launched murderous assault on the complainant party and made fire shot which hit on the right wrist of Mst. Sajida Akhtar.

3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case. Contends that the FIR was registered with a delay of more than nine hours for which no plausible explanation has been given. Contends that according to the FIR, the petitioner made a fire shot with a rifle but the nature of the injury suggests that it was an injury caused by a pallet, which makes the prosecution story doubtful. Contends that even otherwise, the alleged injury caused by the petitioner is on non-vital part of the body, which shows that the petitioner had no intention to kill. Lastly contends that the petitioner is behind the bars for the last more than ten months and his further incarceration would serve no purpose, therefore, he deserves concession of bail.

4. On the other hand, learned Law Officer defended the impugned order. It is contended that the petitioner has specifically been nominated in the crime report with a specific accusation of causing firearm injury on the right wrist of injured PW, which is supported by the medico legal report, therefore, he does not deserve any leniency by this Court.

5. We have heard learned counsel for the parties at some length and have perused the record with their assistance. It is an admitted position that the FIR in the instant case was registered with an inordinate delay of nine hours for which no plausible explanation has been given. As per contents of the crime report, the allegation against the petitioner of causing firearm injury is though established from the record but the dimension of the injury clearly suggests that the allegation levelled against the petitioner is not fully borne out qua the kind of weapon because of the reason that the doctor while examining the injured PW has given the dimension of the injury as 0.5 cm x 0.5 cm, which clearly shows that the injury was caused by a pellet, which is ejected from gunshot and not from the weapon which is alleged against the petitioner. It is also an admitted position that the petitioner fired only single shot at the non-vital part i.e. wrist of the injured PW and had not repeated the same despite having ample opportunity to do so, which shows that perhaps the petitioner had no intention to kill the injured PW. During the course of proceedings, it transpired that no weapon of offence has been recovered from the petitioner by the Investigating Officer. The petitioner is behind the bars for the last more than ten months and there is no likelihood of commencement of trial in newer future. Moreso, the dimension of the injury created a doubt in the veracity of the prosecution version, benefit of which can be resolved in favour of the petitioner even at bail stage. Reliance is placed on Samiullah v. Laiqzada (2020 SCMR 1115) and Muhammad Faisal v. The State (2020 SCMR 971). Even otherwise, it has been established from the record that liberty of a person is a precious right which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away on bald allegations. In these circumstances, the petitioner has made out a case for bail as his case squarely falls within the purview of section 497(2), Cr.P.C. entitling for further inquiry into his guilt.

6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 05.08.2021 and admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. The above are the detailed reasons of our short order of even date. MWA/A-16/SC Bail granted.