2011 PLP 595 (YLR)

CH. IFTIKHAR HUSSAIN, J.--Petitioner Sher Muhammad through the instant petition has prayed for after arrest bail in case F.I.R. No.58 registered under sections 324, 148, 149, 109, P.P.C. with Police Station Midh Ranjha, District Sargodha on 10-2-2010. Later on, the police is stated to have added the offence under section 337-F(vi), P.P.C. in the same.

2. The facts of the case were recorded in my order dated 6-8-2010, on the similar petition bearing Criminal Miscellaneous No.8130-B of 2010 of the petitioner's co-accused Zafar Iqbal. I, therefore, avoid to repeat the same here.

3. The learned counsel for the petitioner has contended that there is variation in the role ascribed to the petitioner in the F.I.R. and the medico-legal report of injured Haji Sher Muhammad, complainant and this fact alone makes his case as one of further inquiry into his guilt; that the injuries of injured were on the non-vital part of the body; that it is yet to be seen that if he in such circumstances, can be held liable for the offence attempt to commit the qatl-e-amd of injured under section 324, P.P.C.; that the question of his vicarious liability in the matter is also to be determined at trial; that he is behind the bars; and that he is previous non-convict.

4. On the other hand, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has contended that he is named in the FIR.; that he has fired two gun shots at injured Haji Sher Muhammad hitting on his right knee; that the offence does fall within the prohibitory clause of section 497(1), Cr.P.C; that the trial has commenced; and that in such circumstances, he is not entitled to bail at this stage.

5. I have carefully considered the submissions made on behalf of the parties and record perused.

6. I find that, according to the F.I.R., he has fired two gun shots at complainant Haji Sher Muhammad (injured) hitting on his right knee. His medico-legal report is annexed to the instant petition. The same shows that he had following injuries on his person: (i) A fire-arm lacerated wound of entry as front and lower part or right knee joint size 5 cm x 5 cm. Leaving inverted margins and circular shaped. (ii) A fire-arm wound lacerated of exit as the back of upper of (R) leg size 8 cm x 8 cm leaving inverted margins and irregular shaped.

7. The above position in the medico-legal report of the injured/complainant shows that one of these was lacerated wound of entry on the lower part of the right knee joint and the other such wound of exit. So, this ex-facie would show that only one injury was found on his person on his medical examination. This position in his medico-legal report is in conflict to the narration of the F.I.R. as regards the petitioner's role. At the same time, it would also ex-facie show that there was no repetition of fire on his part. The above injury, even otherwise, was on the non-vital part of the body of the injured.

8. Therefore, in such circumstance, it would yet to be seen at trial that if he ultimately can be held liable for the offence of attempt to commit the qatl-e-amd of the injured person. The question of his vicarious liability in the matter is also to be gone into at trial. Hence, his case is open to further inquiry into his guilt and so, is covered under subsection (2) of section 497, Cr.P.C.

9. The added offence under section 337-F(vi) is not covered within the prohibitory clause of subsection (1) of section 497, Cr.P.C. The commencement of his trial is no bar to his enlargement on bail as held in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585).

10. He is stated to be behind the bars and a previous non-convict.

11. In these circumstances of the case, I find that the case for his enlargement on bail has been made out.

12. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees on lac only) with one surety in the like amount to the satisfaction of the learned trial Court.

13. However, it is hereby clarified that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's cast at trial. N.H.Q./S-189/L Bail allowed.