2019 PLP 54 (YLRN)

SADIQ MAHMUD KHURRAM, J.

Through the instant petition under section 497, Cr.P.C. the petitioner namely Mehboob is seeking post-arrest bail in the case FIR No. 254 of 2018 dated 21.04.2018 registered at with Police Station Fazilpur, District Rajan Pur, in respect of offences under sections 302, 324, 148 and 149, P.P.C.

2. The allegation as against the petitioner, culled from the evidentiary material placed before the Court, is that he while armed with a Kalashnikov fired at the deceased Nasrullah which fire hit the deceased on his right elbow and went out through the right upper arm. Furthermore the case of prosecution is that in the same incident co-accused of the petitioner namely Mureed Hussain, armed with a Kalashnikov, fired at the deceased namely Nasrullah which fire hit him on the left temporal region of the deceased and the brain matter came out of the skull of the deceased and while Nasrullah (deceased) had fallen down, Nadeem Hussain, co- accused of the petitioner, fired with his Kalashnikov which fire hit on the back of the deceased whereas the co-accused Nazar Hussain also fired with his Kalashnikov which fire hit on the right side of the deceased and also made a second fire which hit on the left upper arm of the deceased. Furthermore the case of the prosecution is that the co-accused Mureed Hussain also fired at Allah Wasaya son of Allah Ditta (injured witness) which fire hit on his chest.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.

4. As per the prosecution case the co-accused of the petitioner namely Mureed Hussain , who was armed with a Kalashnikov, made the first fire shot at the deceased namely Nasrullah which fire hit the deceased on the left temporal region and while Nasrullah (deceased) had fallen down, Nadeem Hussain, co-accused of the petitioner, made the second fire shot with his Kalashnikov which fire hit on the back of the deceased. These two injuries, attributed to the co- accused of the petitioner namely Mureed Hussain and Nadeem Hussain, were opined as being the cause of death by the Medical Officer. So far as the petitioner is concerned, he was assigned the role of causing single firearm injury on the right elbow of the deceased which is non-vital part of the body. While preparing the post mortem examination report, no opinion was given as to the nature of injury allegedly caused by the petitioner by the Medical Officer neither it was opined that the same had contributed, in any manner, towards causing the death of the deceased. Four crime empties were recovered from the place of occurrence and as per the report of Punjab Forensic Science Agency, which is on the record, the said crime empties recovered from the place of occurrence did not match with the Kalashnikov rifle allegedly recovered from the possession of the petitioner. Additionally the motive of the occurrence is not attributable to the petitioner . Moreover Allah Wasaya son of Allah Ditta (injured witness) did not nominate the petitioner in his statement recorded during the investigation of the case under section 161, Cr.P.C. on 15.05.2018. The petitioner namely Mehboob was arrested in this case on 22.06.2018 and since then he is behind the bars. The petitioner is a previous non-convict and never involved in any case. Investigation qua him is complete and his person is no more required for further investigation, therefore, his continuous incarceration would not serve any beneficial purpose at this stage. Keeping in view that the petitioner was assigned the role of causing one firearm injury on non-vital part of body his case is distinguishable from the other accused and matter regarding his involvement and the extent to which he is liable can be seen only after recording of evidence. Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. Reliance is placed on case titled as Shah Nawaz and others v. The State and another (2008 SCMR 1436) and Muhammad Iqbal alias Bala Bandri v. The State and others (2017 SCMR 1939).

5. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt. The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.500,000/- (rupees five hundred thousand only) with two sureties, in the like amount, to the satisfaction of learned trial court.

6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. MQ/M-45/L Bail allowed.