2010 P Cr (PLP)

CH. IFTIKHAR HUSSAIN, J.

Petitioner Qaiser Humayun by way of the instant petition has prayed for bail after-arrest in case F.I.R. No.376 registered under section 324/452/148/149, P.P.C. with Police Station Kassoki, District Hafizabad on 12-9-2009.

2. Briefly the prosecution case as per the F.I.R. is that on 11-9-2009 at about 9-00 p.m. Riasat Ali and others, having firearms, in prosecution of the common object of the unlawful assembly formed by them have trespassed into the house of the complainant and there they injured him (complainant), his wife Zarin Bibi, son Zohaib, brother Afzal and nephews Asim, Adil and Manzar. He has fired rifle shot at his wife hitting her on the right leg. The motive behind the occurrence is that a day prior to the same, a quarrel had taken place between his nephew Adil and accused Ikram, etc.

3. After hearing the learned counsel for the parties and going through the record, I find that he according to the F.I.R., has fired rifle shot hitting at the 'complainant's wife Mst. Zarin Bibi. His co-accused Ghulam Abbas has also been ascribed gunshot to her hitting on that very part of her body, i.e. right leg. Firstly, the fire ascribed to him to her was not on the vital part of her body. Secondly, there was no repetition of fire on his part.

4. It is interesting to note that his co-accused Muhammad Kashif, who has been ascribed gunshot to his son Zohaib hitting on his left leg has been allowed bail in this case by the learned Additional Sessions Judge, Hafizabad on 12-12-2009, observing that the fire ascribed to him was not on the vital part of the body and he had not repeated it and that he has joined the investigation and no more required by the police. These reasons are equally present/available in his (petitioner) case. So, the rule of consistency is attracted to his case on such count.

5. The learned counsel for the complainant on query has submitted that no move for cancellation or recalling of the relief to his said co-accused Kashif has been made by the complainant. It means that such an order is in the field and so far not interfered with.

6. It is also relevant to mention here that his another co-accused Munir Ahmad has also been allowed bail by the said learned Additional Sessions Judge on 25-11-2009. It is noticeable that he (Munir Ahmad) has been ascribed the rifle shot to the complainant's brother Afzal hitting on his head. The position again is the same as per the showings of the learned counsel for the complainant that so far no move for cancellation or recalling of the said relief allowed to him has been made by the complainant's side.

7. The petitioner's another co-accused Zulfiqar Ali, who has been attributed rifle shot to the complainant on his left leg has also been allowed bail on 9-1-2010. Although he was found innocent during the investigation by the police yet the above indicated attribution was there to him. Another important aspect of the matter, which is very much reflective from the Medico-Legal Report of injured Zarin Bibi, is that there had been found two injuries on her body. Injury No. 1 was a firearm lacerated wound on the front of her right thigh. The same has been declared to be ghayr-jaifah damiyah. The same attracts an offence under section 337-F(i) P.P.C. and the same is bailable.

8. There had yet been found another injury on her right knee as per her Medico-Legal Report. It was firearm entry wound. According to the F.I.R., the other injury was caused to her by Ghulam Abbas co- accused, who has been let off by the police being innocent. The narration of the F.I.R. does not clearly indicate that which accused has caused injury No.1 to her and who No.2.

9. Hence, in such circumstances, the question that if he (petitioner) ultimately would be held liable of the offence under section 324 or that which of the injuries on the right leg of the lady has been caused by him and the question of his vicarious liability, if at all may be so, is to be gone into at trial. It is also needless to mention here that there is also section 452, P.P.C. applied in the instant case. The offence under the same but is not covered within the prohibitory clause of section 497(1), Cr.P.C.

10. Although the rifle is shown to have been recovered from him yet it is everybody's case that no crime-empty was found from the spot. Hence, the question regarding the petitioner's guilt in the matter definitely calls for further probe or inquiry. So, the mischief subsection (2) of section 497, Cr.P.C. is attracted to his case. In these circumstances, he becomes entitled to bail as of right and not mere grace and he so, cannot be detained unnecessarily for a moment even.

11. He has statedly been arrested on 29-9-2009 and is behind the bars since then. This period is spread over six months. He is also stated to be a previous non-convict, which has not been controverted by the other side.

12. In these circumstances of the case, I find him entitled to bail. I, therefore, accept this petition and admit him to bail in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.

13. I may observe here that the above observations made in this order are tentative in nature and meant only for the disposal of the instant matter and the same shall not prejudice the mind of the learned trial Court in any manner. H.B.T./Q-7/L Bail granted.