Cr

Cr.B.A.No. 813 of 2012.

For Hearing.

27.11.2012. Mr.Qurban Ali Malano advocate for the applicants.

Mr.A.R.Farooq Pirzada advocate for the complainant.

Mr.Zulifquar Ali Jatoi DPG.

O R D E R.

SALAHUDDIN PANHWAR ,J- Applicants seek post arrest bail in Crime No.116/2012 of Police Station Padidan registered for an offence under Section 324, 337-A(i), 337-F(i),147, 148, 149, PPC and 7 ATA.

2. The relevant facts of the case of prosecution are that on 18.8.2012 complainant alongwith his son Humyoon and his relative Aziz went to the shop of Tailor Master Muhammad Ehsan Mangi where Khalid Hussain was already present with Muhammad Ehsan meanwhile they heard fire shot towards old Habib Chowk, they rushed there and saw 13 persons duly armed, identified them on electric bulbs to be Ayaz Ansari with mouser, Farooq Ansari with Kalashinkov, Beejal Ansari with repeater, all sons of Muhammad Ameen Ansari, Khalil Shah with Kalashinkov, Zuhaib Ansari with rifle, Saeed Ahmed Soomro with rifle, Furqan Ansari with pistol, Shahoor Ansari with lathi, Muhammad Farooq son of Jameel Ahmed with pistol alongwith 3/4 other unidentified persons having lathis and hatchets. They abused the complainant party. Ayaz Ansari and Beejal Ansari made straight fires at the complainant party with the intention to murder them with their mouser and repeater, which hit to Hymayoon over his right arm; accused Zuhaib Ansari caused fire shot on Muhammad Ehsan from his rifle, which hit him on his right leg, accused Shahoor caused lathi blow to Khalid Hussain on his head and the other accused persons also gave kicks and fist blows. Meanwhile police reached there. The injured persons were shifted to RHC Paddidan wherefrom they were referred to Nawab Shah and Hydrabad. Thereafter the FIR was lodged.

3. Counsel for the applicants has inter alia contended that the applicants have been booked in false case due to political enmity; FIR is delayed for 24 hours for which there no plausible explanation furnished, therefore deliberation and manipulation cannot be ruled out; injured Imtiaz Ali Khaskeli who received injuries at the hands of complainant party expired, such FIR has been lodged against the complainant party, medical evidence negates the ocular version and there is over-writing on medical certificate.

4. Learned DPG has supported the order of the trial court and contends that the applicants are not entitled for bail as their names transpire in F.I.R with specific role.

5. On the other hand learned counsel for the complainant has vehemently opposed the bail on the ground that the names of the applicants transpire in the FIR with specific role as they have caused injuries to the injured persons therefore they are not entitled for bail. He has relied upon the case of Waqas Ahmed and another v The State (2005 SCMR 1496) and Dost Muhammad v The State (PLD 1997 Lahore 589).

6. Heard the arguments of the learned counsel for the parties and perused the record.

7. We do not find any substance in the plea of the learned counsel for the complainant that since applicants / accused are named in the FIR hence not entitled for concession of bail. There can be no cavil to deny well settled principle of law that mere appearance of one’s name in the FIR would not necessarily disentitle him from concession of bail unless other material prima facie link the accused with offence with which he is charged eliminating all rooms of doubts and further probe.

8. Regarding the contention of complainant’s counsel that plea of counter case is no ground to grant the bail to the applicants, on this count, we are in agreement with these contentions and further say that it is not necessary that in every case of counter version the bail becomes the right of the accused. However, without prejudice to issue of counter version we confine our-selves on the merits of the instant case which makes it manifest that the allegation against Ayaz is to have caused butt blow and for accused Beejal it is alleged that he has caused fire of repeater but medical evidence reflects that such inquiry is not grievous and even not attracting the prohibitory clause, it is not alleged that he repeated the fire shot though injured was at the mercy of applicant, alleged injury is caused on right arm, admittedly same is not on vital part, which also makes a room opened for further inquiry. Further, perusal of the record shows that it is an admitted position that on similar role, co-accused Zohaib was granted bail by the trial Court as it was alleged that accused Zuhaib caused fire shot upon Muhammad Ehsan, which hit him on right leg. From the further perusal it is evident that there are general allegations against Ayaz Ansari and Beejal Ansari that who have caused fire shots to Humayoon over his arm, therefore, it is suffice to say that the role of the applicants is also same hence they have qualified themselves for the same treatment on the well established principle of rule of consistency. Moreover the FIR is delay by 24 hours for which there is no plausible explanation on record and such delay has been alleged by the applicants/accused to be for deliberation and consultation for purpose of widening the net. It is also a matter of record that the applicants alongwith other co-accused were allegedly identified under the light of electric bulbs as the incident was taken place in the night time, therefore, apparently the matter requires further probe and does not fall within the prohibitory clause. We are fortified by the case of Jan Muhammad v Haji Noor Jamal and another (1998 S C M R 500), in which Honourable Supreme Court while granting bail to an accused observed as under:-

“In light of the provisions contained in section 324, P.P.C read with section 337, P.P.C, we agree with the submissions made by the learned counsel for the petitioner. We agree with him that present case is not covered by the prohibition contained in subsection (1) of section 497, Cr.P.C.

Consequently, we convert this petition into appeal and direct the appellant to be released on bail”.

9. Regarding to the case of Waqas Ahmed (supra) relied upon by the counsel of complainant, we have examined the same, in that case bail was declined on the ground that “delay in F.I.R is not ground for grant of bail”, there is no cavil on this proposition of law that delay per se is no ground for grant of bail and other aspects of the case are material to be considered to draw the inference that whether reasonable grounds exist against the accused, in cases which are punishable for life or more then ten years and Sub-section (2) of Section 497 Cr.P.C provides that if the case of applicants falls within ambit of further enquiry, in that condition, applicants/accused will be entitled for concession of bail.

10. Keeping in view the given circumstances we are of the considered view that the applicants have made out a case from the purview of bar contained in Sub-section (1) of Section 497, Cr.P.C thereby we are inclined to accept the bail plea of the applicants/accused. Accordingly, the applicants/accused are directed to be released on bail subject to their furnishing solvent surety in the sum of Rs.50,000/- each and P.R bond in the like amount to the satisfaction of the trial Court.

JUDGE

Akber.