MAZHAR vs THE STATE
This matter arises from a post-arrest bail petition filed by the petitioner seeking release in a criminal case registered under sections 324 and 34 of the Pakistan Penal Code 1860 at Police Station Luddan, District Vehari. The core legal question concerns whether the petitioner is entitled to post-arrest bail considering the non-vital nature of the injury attributed to him, the applicability of the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, the prolonged incarceration without trial progress, and the rule of consistency in view of bail granted to a co-accused. The Lahore High Court accepted the petition and granted post-arrest bail to the petitioner. The court held that since the firearm injury was on a non-vital part of the body (the right knee) with no repetition of shots, the case did not prima facie fall within the prohibitory clause of section 497. The court laid down the principle that keeping an accused behind bars indefinitely without trial progress serves no useful purpose, and that bail should be granted based on the rule of consistency when a co-accused facing similar circumstances has already been released.
- Whether an accused is entitled to post-arrest bail when the firearm injury is attributed to a non-vital part of the body?
- Does a case attract the prohibitory clause under section 324 of the Pakistan Penal Code 1860 when the accused does not repeat the shot despite the victim being at their mercy?
- Can bail be granted on the ground of the rule of consistency when a co-accused has already been released by the court?
- Does prolonged incarceration without any significant progress in the trial justify the grant of post-arrest bail?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' IQBAL HAMEED-UR-REHMAN, J.---The petitioner seeks post-arrest bail in a case registered vide F.I.R.
No:724 of 2006, dated 19-11-2006 under sections 324, 34, P.P.C. At Police Station Luddan, District Vehari.
3. Earlier the post - arrest bail of the petitioner has been declined by the learned Additional Sessions Judge, vehari vide order, dated 18-6-2007.
4. The brief allegation against the petitioner and other co-accused as per the contents of the F.I.R.
Is that on 19-11-2006 at about 8-00 a.m. The brother of the complainant was going to his field on Tractor, suddenly accused persons appeared armed with Rifles and assaulted on him. Resultantly, they inflicted firearm injuries on the person of the brother of the complainant they also caused damage to his Tractor by resorting firing at it.
5. It is contended on behalf of ' the petitioner that the injury attributed to the petitioner is on the non-vital part of the body, which is on the right knee of the injured, as such section 342, P.P.C. Is not attracted that the injury attributed to the petitioner is simple in nature that there is a delay of ten hours in lodging of the F.I.R., that the other co-accused has been allowed bail by this Court. Further that the petitioner is behind the bars for the last 10 months. Further contended that the petitioner is also entitled for the grant of bail as a rule of consistency. Reliance has been placed on the cases of Muhammad Umar v. The State and another (PLD 2004 SC 477), Muhammad Afsar v. The State (1994 SCM R 2051), and Muhammad Mumtaz v. The State (2004 PCr.LJ 1875).
6. Bail petition has vehemently been opposed by the Deputy Prosecutor General on the ground that the petitioner is nominated in the F.I.R., specific role is attributed to the petitioner. That the challan has been submitted. Further that the ingredients of offence under section 324, P.P.C. Are completed when trigger is pressed by the accused person, as such the offence with which the petitioner has been charged falls within the prohibitory clause.
7. Arguments heard. Record perused.
8. The role attributed to the petitioner is of causing firearm injury on the right knee of the injured and prima facie he appeared to have no intention to fire upon the vital part of the body of the injured for the purposes of launching murderous assault. The accused had not repeated the shot though victim was at his mercy. The case does not fall within the prohibitory clause. The co- accused has been granted bail by this Court. In the case of Muhammad Umar v. The State and another (PLD 2004 SC 477) it has been held by the Honourable Supreme Court of Pakistan that "accused according to medical certificate had allegedly fired upon the outer side of the right leg's middle part of the injured witness and, prima facie, he appeared to have no intention to fire upon any vital part of said witness for the purpose of launching murderous assault. Challan had been submitted in the Court, trial had commenced accused was in custody since the date of his arrest and was no more required for investigation. Accused was admitted to bail accordingly." And in the case of Ali Sher v. The State 1987 M LD 1129 it has been held that "Fact that co-accused in a case under section 302/34 was admitted to bail on ground that he was found innocent by the police, entitles to bail the other co-accused who on similar allegations has been found guilty by police.
The petitioner is behind the bars for the last ten months and there is no progress in the trial. There is no likelihood of they early conclusion of the trial and to kept the petitioner behind the bars indefinitely will not serve any useful purpose. Therefore, keeping in view the rule of consistency, the petitioner is also entitled for the grant of bail. Relying upon the case of Muhammad Umar v. The State and another (PLD 2004 Supreme Court 477) and Ali Sher v. The State 1987 M LD 1129 the petition is allowed and the petitioner is admitted to post-arrest bail subject to his furnishing surety bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court concerned.