2017 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this petition under section 498, Cr.P.C. Muhammad Usman alias Sani petitioner has sought pre-arrest bail in case FIR No.967/16 dated 07.09.2016, under sections 324, 337F(iii), 109, 34, P.P.C., registered at Police Station Saddar Faisalabad.

2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail before arrest and only tentative assessment is required at this stage. It has been noticed by this Court that there is a delay of twenty three days in registration of FIR, which has not been explained therein, which prima facie shows that the FIR has been got recorded after due deliberation and consultation. Although in FIR, the petitioner has been assigned the role of making a fire shot, which allegedly hit Basharat Ali, brother of the complainant, on left thigh and caused damage to his left testicle, yet during the course of investigation one conducted by the local police and second by the Deputy Superintendent of Police, it came on the surface of record that the injury on the person of Basharat Ali was caused only by one Asif Ali; the petitioner was not present at the spot and he was found involved only to the extent of allegation of abetment, but his active participation in the alleged occurrence could not be established. It has also been noticed by this Court that the complainant has not mentioned the name of Asif Ali co-accused in FIR and only the names of three accused i.e. present petitioner Muhammad Usman alias Sani along with accused Shahbaz and Mohsin are mentioned therein. The outcome of investigation that Asif Ali co-accused had caused firearm injury on the person of Basharat Ali injured prima facie finds support from his medico legal certificate, wherein the said injured has got mentioned in brief history that four persons were present at the spot at the time of occurrence, but the complainant has mentioned the names of only three accused in FIR by excluding Asif Ali co-accused. In view of the allegations contained in FIR and the facts emerged during the course of investigation, prima facie the case against the petitioner has become a case of two versions; one put forward by the complainant in FIR and the other came on record during investigation and which version is correct shall be determined by the learned trial court after recording evidence. Reliance can be placed upon 2012 SCMR 1137 (Ehsan Ullah v. The State) wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:- "This shows that in the present case the prosecution itself has two versions vis- -vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt." In this regard, guidance can also be sought from the pronouncement of Hon'ble Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State and others" (2016 SCMR 18), wherein the apex Court has been pleased to observe as under:- "Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice." Apart from the above, the petitioner has got registered an FIR No.972/16 dated 08.09.2016, under sections 337F(vi), 337H(2), 34, P.P.C., Police Station Saddar Faisalabad, wherein Basharat Ali injured is named as accused with specific role of causing fracture of index finger of the present petitioner. Admittedly, the petitioner is previous non-convict. The questions of sharing common intention and vicarious liability of the petitioner in this case are to be determined by the learned trial Court after recording of evidence. Bail before arrest is meant to save innocent persons from the clutches of police, rigors of remand and investigation and in this case the petitioner has already joined the investigation which is complete to his extent, therefore, no useful purpose would be served by sending him behind the bars at this stage.

3. For what has been discussed above, false implication of the petitioner with mala fide intention and ulterior motive in order to counter FIR No.972/16 dated 08.09.2016, under sections 337F(vi), 337H(2), 34, P.P.C., Police Station Saddar Faisalabad, cannot be ruled out of consideration. Resultantly, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioner vide this Court's order dated 16.11.2016 is confirmed subject to furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of learned trial court.

4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. WA/M-27/L Bail confirmed.