2019 PLP 9 (YLRN)

ASJAD JAVAID GHURAL, J.

Through this petition under Section 497 Cr.P.C., petitioner Kishwar Abbas Shah alias Kashi has sought post arrest bail in case FIR No.425 dated 25.10.2017, in respect of offences under Sections 324 and 34, P.P.C., registered at Police Station, Daira Deen Panah District Muzaffargarh.

2. The allegation against the petitioner, as contained in the crime report, is that on 25.10.2017 at about 2:30 p.m., he along with his co-accused, while armed with pistols, in furtherance of their common intention, had launched murderous assault upon Khadim Hussain, brother of the complainant and caused fire arm injuries on different parts of his body. Hence, this case was registered.

3. I have heard learned counsel for the petitioner, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and have perused the record with their able assistance.

4. The petitioner was saddled with the responsibility of making two fire shots causing injuries at the right side of ribs (thorax) and the right thigh of injured Khadim Hussain. The medico-legal certificate of the said injured witness shows that the injury sustained by him at the chest was falling within the ambit of Section 337-D, P.P.C. and the other injury at his right thigh was falling within the ambit of Section 337-F(ii), P.P.C. The statement of injured witnesses was recorded with the delay of 19-days, which prima facie renders it to be legally unacceptable as held in case titled "Muhammad Asif v. The State" (2017 SCMR 486)".

5. Admittedly, during investigation, nothing was recovered from the petitioner's possession. Furthermore, during two successive investigations, it was found that the petitioner was though present at the place of occurrence yet empty-handed without playing any role whatsoever and one of the co-accused namely Imran was declared to be not involved in this case. This shows that it is a case of two versions, one put by the complainant and the eye-witnesses including the injured one that the petitioner had caused two fire arm injuries to the injured witness and the second one of the investigating agency during two successive investigations wherein he was found present at the place of occurrence empty-handed. The aforesaid facts and circumstances of the case render it to be one of further inquiry into the guilt of the petitioner in view of the dictum laid down in case titled "Ehsan Ullah v. The State" (2012 SCMR 1137) wherein it was held as under:- "It is pertinent to mention that the investigating agency had reached at a definite conclusion that the petitioner was not even present at the scene of the crime at the relevant time and as a matter of fact he had provided behind-the-scene abetment to his co-accused for commission of the alleged offences and this is why the petitioner has been recommended for trial only in respect of an offence under section 109, P.P.C. This shows that in the present case the prosecution itself has two versions vis- -vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All the considerations surely render the case against the petitioner one of further inquiry into his guilt."

6. The petitioner was arrested in this case on 15.12.2017 and he is behind the bars since then without any substantial progress in the conclusion of the trial and, thus, he cannot be kept in the judicial lockup for an indefinite period. In view of above, the petition in hand is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.100,000/- (rupees one lac) with one surety in the like amount to the satisfaction of the trial Court. MQ/K-21/L Bail granted.