2009 PLP 2346 (YLR)

HABIB ULLAH SHAKIR, J.--Through this petition, the petitioner seeks post-arrest bail in case F.I.R. No.154 of 2007, dated 4-8-2007, registered under sections 365, 324, 148, 149, 109, 337-A(ii), 337-F(ii), 337-F(iii) and 337-L(ii) P.P.C., at Police Station Inayati, District Bahawalpur.

2. Allegation against the petitioner as per contents of the F.I.R. lodged by Imdad Hussain/complainant is that on 4-8-2007 the petitioner armed with rifle along with his companions trespassed complainant's house raised Lalkara saying that they had come to take revenge for abduction of Mst. Naseem Akhtar, he gave blow with his rifle on his buttocks and made straight fire on his father which hit his calf; his second fire hit the wrist of complainant's father. The accomplices of the petitioner also gave beatings to the complainant and his father and consequently 'abducted Mst. Bakhat, Ilahi, mother of the complainant.

3. It is contended by learned counsel for the petitioner that the petitioner has falsely been involved in the instant case due to previous enmity because earlier to the instant occurrence one Mst. Naseem Akhtar, cousin of petitioner was abducted by brother of the complainant and in the said case the petitioner was a star witness. Further contends that Mst. Bakhat Ilahi, the alleged abductee has not been recovered from the petitioner rather she has appeared before the police of her own. Adds that the alleged abductee Mst. Bakhat Ilahi appeared before the police on 27-8-2007 on her own and submitted a written application wherein she alleged that she was got abducted by Saddat Hussain Gillani for ransom and released her after taking Rs.4,00,000 from her son. She further nominated 12/13 persons in her application, independent of the F.I.R., however, all those persons were declared innocent during the investigation and the version of Mst. Bakhat Ilahi was rejected by the police, which makes the case one of further inquiry. The petitioner is behind the bars since 13-11-2007. The alleged recovery of weapon of offence has been effected from the petitioner and he is no more required by the police. Learned counsel further submits that there is contradiction between the ocular and the medical evidence. The learned counsel has stated that Muhammad Iqbal co-accused with similar allegations has already been admitted to bail by this Court vide order dated 7-11-2008 passed in Crl. M.No.1270-B-2008/BWP, therefore, the petitioner is also entitled for the grant of bail on the rule of consistency.

4. The learned DPG assisted by learned counsel for the complainant opposed the prayer for grant of bail on the ground that the petitioner is nominated in the F.I.R. with a specific role of causing injuries to the complainant and his father and abduction of Mst. Bakhat Ilahi, mother of the complainant. The offences alleged against him fall within the prohibitory clause of section 497, Cr.P.C.

5. Heard. Record perused.

6. It has been noticed that there exists previous enmity between the parties because during the course of investigation it has come on record that in year, 2005 Mst. Naseem Akhtar, a cousin of the petitioner was abducted and case F.I.R. 194 of 2005 was registered against brother of the complainant. It has, also been noticed that the alleged abducutee Mst. Bakhat Ilahi appeared before the police on 27-8-2007 of her own and submitted a written application wherein she alleged that she was got abducted by Saddat Hussain Gillani for ransom and was released, after taking Rs.4,00,000 from her son. She further nominated in her application 12/13 persons, independent of the F.I.R.; however all those persons were declared innocent during the investigation and the version of Mst. Bakhat Ilahi regarding her abduction was found incorrect by the police. Declaring of the nominated accused persons in the statement recorded under section 161, Cr.P.C. of Mst. Bakhat Ilahi, the alleged abductee as innocent by the police and the story of the prosecution qua abduction of Mst. Bakhat Ilahi and demand/receipt of ransom having been found incorrect, prima facie, makes the case one of further inquiry. It has also been noticed that the alleged abductee has not been recovered from the petitioner or any of his co-accused rather she has appeared before the police of her own. Muhammad Iqbal co-accused with similar allegations has already been admitted to bail by this Court vide order dated 7-11-2008 passed in Crl. M. No.1270-B-2008/BWP, therefore, the petitioner is also entitled for the grant of bail on the rule of consistency.

7. The petitioner is alleged to have been armed with rifle at the time of alleged occurrence whereas recovery of repeater was effected from him. It is mentioned in the F.I.R. that the petitioner inflicted blow with rifle on the buttocks of the complainant and fired with his rifle, which hit the calf of complainant's father and his second fire hit the wrist of the complainant's father. Whereas the perusal of the medical certificate of Muhammad Iqbal, father of the complainant shows that the injury, which was found on the left fore-arm by the examinee was caused with a sharp edged weapon. It means that the injury was not caused with fire-arm as alleged in the F.I.R. Further the injury alleged suffered by the complainant at the hands of the petitioner falls under section 337-L(ii) of the P.P.C., which is bailable. The injuries attributed to the petitioner regarding Muhammad Ishaq fall within the encompass sections 337-F(ii) and 337-F(iii) of the P.P.C., for which three years' punishment is provided. Thus, these offences do not fall within the prohibitory clause of section 497, Cr.P.C. Moreover, the injuries ascribed to the petitioner are not on the vital parts of the injured persons. So far as the application of section 324, P.P.C. is concerned the same shall be seen at the trial after recording of evidence by the learned trial Court. The petitioner is behind the bars since 13-11-2007 and is no more required for further investigation. By keeping him in jail no useful purpose of law would be served. Bail cannot be refused merely on the round that some of the offences alleged against the petitioner fall within the prohibitory clause of section 497, Cr.P.C.

8. For the foregoing reasons, this petition is allowed and the petitioner is admitted to post arrest bail provided he furnishes bail bonds in the sum of Rs.100,000 (one lac rupees) with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./R-61/L Bail granted.