Cr

Cr.B.A.No. 814 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 Beejal and Ayaz seek post arrest bail in Crime No.115/2012 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. Concisely, the facts of the prosecution case are that on 18.8.2012 complainant alongwith his son Fakir Muhammad and Muhammad Sadiq were present in Paddidan town. They saw 12 persons armed with deadly weapons came from Jalal-ji-Chowdagi, they were identified on electric bulbs to be Farooq Ansari having Kalashinkov, Beejal having repeater, Ayaz having mouser, Shakeel having pistol, Farooq Ahmed with pistol, Zubair Ahmed with Kalashinkov, Zaheer with repeater, Iqbal Ansari having pistol, Iqbal Ahmed having repeater and three other unidentified persons duly armed with hatchet and lathis. They caused firing in air due to firing the people of town were scattered. Applicant Beejal caused fire shot, which hit complainant’s brother Jameel Ahmed on his chest and other parts of his body. Applicant Ayaz gave butt blow of mouser to him. Meanwhile police reached there. Thereafter the accused persons went away while causing aerial firing. Injured Muhammad Jameel was brought at Hosptial and FIR was lodged as stated above.

3. Counsel for the applicants has inter alia, contended that FIR is delayed about one day, such delay is not explained therefore deliberation and consultation cannot be ruled out; instant case is counter-blast of Crime No.113 of 2012 lodged by the applicant Ayaz Ahmed against the complainant party, alleged section 324, PPC is not applicable in this case; no recovery of weapon has been effected, case has been challaned thus the applicants are no more required for further investigation; co-accused have been granted bail by the trial Court, therefore rule of consistency is also applicable in this case. He has relied upon Muhammad Akram v Rashid and others (988 SCMR 500), Abdul Hameed v Zahid Hussain alias Papu Chaman Patiwala and others (2011 SCMR 604) and Muhammad Nawaz v The State (2004 SCMR 772).

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

5. On the other hand, learned counsel for the complainant has inter alia argued that the applicants have been implicated with specific role, their names are evident in FIR therefore benefit of counter version cannot be extended to them. 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 record.

7. 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, the scanning of available material shows that it is an admitted position that applicant Ayaz lodged a case hearing Crime No.113/2012 against the complainant party in which, one Imtiaz Ali received injuries and succumbed to the injuries, therefore, the plea of the applicants/accused being roped in result of deliberation appears to be having weight; it is, undisputedly, a night time incident and only source on which the applicants and other co-accused persons, were identified, was the bulb in the street under threat of their lives at the hands of the accused persons, as alleged by complainant also seems to be calling for further probe more particularly when incident was reported with considerable delay of 24 hours despite admitted arrival of police at scene of incident; there is no recovery from the possession of the applicants/accused; case has been challaned, meaning thereby that applicants are no more required for further investigation. Moreover according to medical certificate, injury falls under Section 337F(iii) for which maximum punishment is only 5 years which is not falling within the Prohibitory Clause of Sub-section (1) of Section 497, Cr.P.C, hence the settled principle of law that “bail is a rule in cases, which are not falling within the prohibitory clause while refusal is an exception” comes into play. All these admitted points apparently require further probe into the matter and since there are no exceptional circumstances which could justify keeping the applicants/accused behind the bars for an indefinite period when the applicants/accused would well be given their due at the end of the day if they are found so deserving by learned trial court.

8. 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.

9. 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 grant bail to the applicants 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.