2007 PLP 1388 (MLD)

HASNAT AHMAD KHAN, J.

This order shall dispose of Criminal Miscellaneous. No. 4-B of 2007 as also Criminal Miscellaneous No. 574-B of 2007 as both these matters stem out from the same F.I.R.

2. Yaqoob, Pervaiz and Zulfiqar petitioners (in Criminal Miscellaneous No.4-B/2007) and Hakim Ali petitioner (in Criminal Miscellaneous No. 754-B/2007) have sought post-arrest bail in case F.I.R. No. 187, dated 27-6-2006 registered at Police Station Shehar Sultan, Distt. Muzaffergarh in respect of offences under sections 302/ 454/427/324/342/354/382/148/149/337-A(ii)/337-F(iii)/337-F(ii)/ 190, P.P.C.

3. Briefly, the prosecution story as unfurled in the F.I.R. lodged at the instance of Muhammad Ashraf complainant is that on 27-6-2006 at 8-30 a.m. 67 accused including 20 unidentified persons while armed to the teeth attacked on the complainant and his companions while they were sitting in the Baithak/Drawing Room of Manzoor Hussain in connection with mourning of death of one of their relatives. During the occurrence, 21 persons including the ladies allegedly received injuries at the hands of the accused party. Out of injured P.Ws. Waheed-ur-Rehman died in Nishtar Hospital on the same day as a result of fire-arm injury which was specifically attributed to Tariq co-accused. It was alleged by the complainant that at the time of occurrence the accused party had stormed into certain houses of the complainant party and had looted certain valuable articles. Hence the F.I.R. was registered.

4. Previously Yaqoob, Pcrvaiz and Zulifqar petitioners along with some other xo-accused had applied for bail after arrest vide Criminal Miscellaneous No. 3227-B/2006 but the same was dismissed was withdrawn on 8-11-2006.

5. In support of Criminal Miscellaneous No.4-B/2007, learned counsel for Yaqoob etc., petitioners has contended that nine co-accused of the petitioners have already been allowed bail by this Court vide order, dated 8-11-2006 and, therefore, they are also entitled to bail on the rule of consistency; that it was a case of tree fight during which a large number of persons of both the sides had participated and five persons on the. side of the petitioners were also injured; that the prosecution story is neither plausible nor probable inasmuch as 67 persons were involved in this case and strangely role of each and every accused was ascribed in the F.I.R.; that photo-graphic and computerized view of the occurrence was not possible and on the face of it the same makes the case of the petitioners as that of further inquiry.

6. Learned counsel for Hakim Ali petitioner has contended that no injury to the deceased. had been ascribed to him and only one injury suffered by Muhammad Arshad P.W. on his non-vital part i.e. leg was attributed to the Hakim Ali peritioner and that .nothing was recovered from him during the investigation. To support his contentions learned counsel has placed reliance upon the cases of Abdullah Khan v. The State 1984 MLD 1384 and Ahmad v. Sheru and 8 others (1979 SCMR 526).

7. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed both the bail applications tooth and nail by submitting that all the petitioners are specifically named in the F.I.R. and that previous bail application filed by Yaqoob, Pervaiz and Zulfiqar petitioners having been dismissed as withdrawn, present application is not maintainable. As far as Hakim Ali petitioner is concerned, learned counsel for the complainant has contended that he had caused a fire-arm injury on the upper part of the leg of Muhammad Arshad P.W., therefore he is not entitled to bail. He adds that upper part of the leg cannot be termed as non-vital part of the body and Muhammad Arshad injured P.W. had survived only due to his sheer luck.

8. Heard. Record appended with both the petitions perused. First of all I would like to take up the objection raised by the learned counsel for the complainant regarding the competence and maintainability of Criminal Miscellaneous No. 4-B of 2007 filed by Yaqoob etc. petitioners. Admittedly previous bail application bearing Criminal Miscellaneous No.3227-B of 2006 moved on their behalf was dismissed as withdrawn without discussing the merits of the case. According to the dictum laid down by the Hon'ble Supreme Court in the case reported as Muhammad Riaz v. The State (2002 SCMR 184) withdrawal of bail application would not mean that it was dealt with on merits and consequently fresh bail application can be moved and decided on merits. Resultantly, the objection raised by the learned counsel for the complainant is hereby spurned.

9. As far as the merits of the case are concerned, according to the F.I.R:, role assigned to Zulifqar petitioner was that of causing a sota' blow on the body of Muhammad Ali injured P.W, while according to contents of the F.I.R. Mst. Zakia injured P.W. was roughed up by the Muhammad Yaqub and Pervaiz petitioners. So the allegation levelled against Muhammad Yaqub and Pervaiz petitioner is in the generalized form and no specific injury has been attributed to them. Even otherwise considering facts of the case in the backdrop of the version of the complainant, I have failed to understand/comprehend how the complainant could remember and watch the role performed by each of the 67 accused during the occurrence. After all the occurrence was not watched in a slow motion after preparing the movie of the same. Without giving any definite finding on this aspect of the case I am constrained to observe tentatively that said .overdoing on the part of the complainant would be requiring serious consideration by the learned trial Court during the trial. Admittedly five persons on the side of the accused were injured in the same occurrence but injuries suffered by them were suppressed by the complainant. Pima facie, it appears that it was a case of free fight in which possibility cannot be ruled out that ultimately each accused would be dealt with by the learned trial Court according to his individual role. Therefore, Yaqoob, Pervaiz and Zulifqar petitioners have become able to show that a case of further inquiry has been made out in favour of the petitioners. Admittedly they have not caused any injury to the deceased and only role ascribed. to them is that of causing blunt weapon injuries to the injured P.Ws. Besides that the role ascribed to them is almost similar to the role ascribed to their co-accused who have already been granted bail by this Court vide order, dated 8-11-2006 which having not been challenged before the Hon'ble Supreme Court has attained finality. After dismissal of their previous bail application more than six months have elapsed. They are languishing in jail since 2-7-2006. It is established law that bail cannot be refused as a matter of punishment. Besides that ultimate conviction of the accused can certainly repair the loss of mistaken relief of grant of bail but if any accused is ultimately acquitted, he cannot be compensated for the incarceration suffered by him due to false implication in case, therefore, while relying upon the dictum laid down by the Hon'ble Supreme Court in Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) this .petition is accepted, consequently Yaqoob, Pervaiz and Zulifqar petitioners are allowed bail subject to each one of them, furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in .the like amount to the satisfaction of the learned trial Court.

10. Now I would like to take up the case of Hakim Ali petitioner" He has been ascribed the role of causing fire-arm injury on the right thigh of injured P. W. namely, Muhammad Arshad. Even if his case is taken up as that of individual liability he cannot be treated alike the other co-accused who have already been granted bail. According to the contents of F.I. R. during the occurrence only three accused; namely, Muhammad Tariq, Zulifqar acid Hakim Ali petitioner had effectively used their fire-arm weapons. The choice of weapon of assault and the .locale of injury attributed to the petitioner prima facie shows that his intention .was not so innocent. After pressing the trigger of the rifle prima facie he had done the best 'on his part. According to the police record weapon of offence i.e. rifle had been recovered. at his instance, therefore, at this stage it would be premature to hold that he had no intention to kill Muhammad Arshad P.W. as deeper appreciation of evidence at this stage would not be permissible: As far as case-law relied upon by the learned counsel for Hakim Ali is concerned, same is quite distinguishable. Even otherwise it is established law, that each criminal case has to be decided on its own merits. Consequently, the petition filed by 'Hakim Ali petitioner is found to be meritless and is hereby dismissed. H.B.T./Y-5/L Order accordingly.