2007 PLP 1082 (MLD)

HASNAT AHMED KHAN, J.

Through this Criminal Miscellaneous Zahoor Ahmad petitioner has sought post-arrest bail in case F.I.R. No.393 of 2005, dated 13-11-2005, under sections 324/148/149, P.P.C. registered at police, station Sadar Jalalpur Pirwala, District Multan. After registration of case, offences under sections 337-A(i)/337-A(iii) and 337-F(i), P.P.C. were also added.

2. Briefly the prosecution story as narrated in the F.I.R. lodged at the instance of Abdul Sattar complainant is that on 13-11-2005 at 1-00 p.m. the complainant along with Muhammad Amjad and Ghulam Shabbir was going to bazaar from his house and when they reached near the shop of Abbas Araien, suddenly they were attacked by nine accused including the petitioner. All the accused were armed with fire-arm weapons, Ghulam Abbas co-accused caused fire-arm injury on the chest of Muhammad Amjad injured P.W. with his rifle, while Mehboob and Muhammad Aslam co-accused shot at and injured Ghulam Shabbir injured P.W. In the meanwhile, Mukhtar and Ghulam Abbas P.Ws. also reached the place of occurrence and tried to apprehend he culprits, whereupon, Ghaus Bakhsh and Muhammad Nawaz caused fire-arm injuries to Mukhtar injured P.W. Thereafter, Mukhtar co-accused injured the complainant with sharp edged weapon. The hue and cry raised by the complainant party, attracted Munir Ahmad, Pervez Iqbal and Muhammad Ajmal P.Ws. The petitioner along with Sabir Hussain co-accused allegedly fired at Munir Ahmad, Pervez Iqbal and Muhammad Ajmal P.Ws.

3. In support of this petition, learned counsel for the petitioner has contended that it is a case of cross version and in the same occurrence the petitioner had also received as many as 5 injuries including two sharp edged weapon injuries. He maintains that in fact it was the complainant party who had attacked the petitioner and his associates. He has added that while lodging the F.I.R. the injuries suffered by the petitioner as well as his co-accused were completely suppressed by the complainant. He has maintained that in the complaint filed by Ashiq Hussain, the complainant party has already been summoned to face the trial, therefore, the case of further inquiry has been made out in favour of the petitioner.

4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the bail application on the ground that the offence allegedly committed by the petitioner falls within the prohibitory clause; that the petitioner had been playing hide and .seek with the Courts and could not be arrested before 20-9-2006; that the petitioner is specifically named in the F.I.R. with specific allegation of causing fire-arm injuries to the injured P.Ws; that Ghulam Abbas co-accused has absconded after grant of post-arrest bail and as such, the petitioner is not entitled to bail after arrest.

5. Heard. Record perused.

6. It has been straightway noticed that during the same occurrence five persons on the side of the petitioner/accused suffered injuries. The said injured persons were got medically examined by the police themselves. During the same occurrence the petitioner also received as many as five injuries, out of which 2 were sharp edged weapon injuries. All the injuries suffered by the accused side were suppressed by the complainant while lodging the F.I.R. When confronted with this proposition, the learned counsel for the complaint tried to explain that the said injuries were self suffered injuries. However, he has candidly admitted that no such finding was recorded by any of Medical Officer. It is also an admitted fact that cross version was lodged at the instance of the accused party. Though, it did not find favour with the police, yet the fact remains that the complaint, filed by Ashiq Hussain one of the associates of the accused, is pending and the accused named in the said complaint have been summoned by the learned trial Court. It has been further observed that admittedly the occurrence took place in front of the shop of Abbas co-accused. It is the case of the petitioner that it was the complainant party who had attacked the petitioner and his co-accused after reaching the shop which was in possession of Abbas co-accused. It is also note worthy that the motive of the occurrence as alleged by the complainant was a dispute between the parties over the said shop. It has been further pointed out by the learned counsel for the petitioner that there is a joint allegation against the petitioner and two of his co-accused of causing fire-arm injuries to Munir Ahmad, Pervez Iqbal and Muhammad Ajmal injured P.Ws. Pervez Iqbal and Muhammad Ajmal injured P.Ws. were not medically examined and only Munir Ahmad was medically examined. He had received two injuries which are attributed to three accused including the petitioner, which shows that the said injuries are not specifically attributed to the petitioner. During the investigation, said injured P.W. allegedly submitted an affidavit exonerating the accused. All the above mentioned facts show that the question as to which of the party was aggressor, would be requiring further inquiry at the time of the trial. As far as the contention regarding the absconsion of Ghulam Abbas co-accused is concerned, suffice it to hold that the petitioner cannot be held as hostage for the arrest of said co-accused. Regarding the contention of the learned counsel for the complainant that the petitioner remained absconder, it is observed that the refusal of the bail on the ground of absconsion of accused is not a rule of thumb especially when accused is not declared as absconder. Even otherwise, bail is normally refused to the accused on the ground of absconsion as a rule of propriety and when the accused becomes entitled to bail as a matter of right, he cannot be denied bail simply on the basis of rule of propriety. As observed above, the case of the petitioner has become as that of further inquiry, hence bail cannot be refused to him simply on the ground that he could not be arrested before 20-9-2006. If any case law is required in this regard, reference is made to the cases of The State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322) and Khan Mir v. Amal Sherin alias Kamal and 2 others (1989 SCMR 1987). The petitioner is languishing in jail since 20-9-2006 and the early conclusion of the trial is not in sight.

7. For what has been stated above, this petition is accepted and the petitioner is allowed bail subject to furnishing bail bonds in the sum of Rs.2,00,000 (two lac) with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./Z-19/L Bail granted.