2020 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Through the instant petition under section 497, Cr.P.C. the petitioner namely Muhammad Adnan seeks post-arrest bail in the case FIR No.305 of 2019 dated 04.04.2019 registered at Police Station Gadai, District Dera Ghazi Khan, in respect of offences under sections 302, 324, 148, 109 and 149, P.P.C.

2. The allegation as against the petitioner namely Muhammad Adnan, culled from the evidentiary material placed before the Court, is that he while armed with a Kalashnikov fired at the deceased Mureed Hussain which fire hit the deceased on the inside of the left thigh. Furthermore the case of prosecution is that in the same incident co-accused of the petitioner namely Imran, armed with a Kalashnikov, fired at the deceased namely Mureed Hussain which fire hit on the right ear of the deceased. Noman, co- accused of the petitioner, fired twice with his Kalashnikov which fires hit on the right hip and on the back of the right leg of the deceased whereas the co-accused of the petitioner namely Zulfiqar also fired twice with his Kalashnikov which fires hit on the left knee and left hip of the deceased. Furthermore the case of the prosecution is that the co-accused of the petitioner namely Imran also fired at Abdul Subhan (injured witness), which fire hit on his right foot.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.

4. As per the prosecution case the co-accused of the petitioner namely Imran, armed with a Kalashnikov, fired at the deceased namely Mureed Hussain, which fire hit on the right ear of the deceased. The injury attributed to the co-accused of the petitioner namely Imran, was opined as being the cause of death by the Medical Officer who conducted the postmortem examination of the deceased namely Abdul Subhan. The Medical Officer in his final opinion has opined as under:- "Injury #2 causing damage to the brain matter which is a vital organ leading to hypovolemic/hemorrhagic shock leading to death in ordinary course of life." As mentioned above, the said injury No.2 is attributed to the co-accused of the petitioner namely Imran. So far as the petitioner is concerned, he was assigned the role of causing a single firearm injury on the inner side of the left thigh of the deceased, which is non-vital part of the body. While preparing the post mortem examination report, no opinion was given as to the nature of injury allegedly caused by the petitioner by the Medical Officer and it was not opined that the same had contributed, in any manner, towards causing the death of the deceased. Additionally the motive of the occurrence is not ascribed to the petitioner. The petitioner namely Muhammad Adnan was arrested in this case on 15.04.2019 and since then he is behind the bars. During the investigation of the case, certain documentary evidence was also collected pointing towards the presence of the petitioner at Lahore at the time of occurrence. The learned counsel for the petitioner has also appended and referred to the copy of a discharge report dated 27.09.2019 prepared with regard to the petitioner being found innocent during the investigation of the case. The co-accused of the petitioner namely Noman and Zulfiqar, who were also ascribed to have caused injuries to the deceased, were also declared innocent during the investigation of the case. The petitioner is a previous non-convict and never involved in any case. Investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any beneficial purpose at this stage. Keeping in view that the petitioner was assigned the role of causing one firearm injury on non-vital part of body, his case is distinguishable from the other accused and matter regarding his involvement and the extent to which he is liable can be seen only after recording of evidence. Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. Reliance is placed on case titled as Shah Nawaz and others v. The State and another (2008 SCMR 1436) and Muhammad Iqbal alias Bala Bandri v. The State and others (2017 SCMR 1939).

5. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt. The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.1,000,000/- (rupees one million only) with two sureties, in the like amount, to the satisfaction of learned trial court.

6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. Additionally a direction is issued to the learned trial court to conclude the trial of the case expeditiously, preferably within a period of three months from the receipt of copy of this order. It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial then the trial court shall be at liberty to cancel the bail of the petitioner in accordance with law. SA/M-7/L Bail grante