GHULAM MOHY-UD-DIN Versus STATE

ORDER

This is a petition for granting bail to Ghulam Mohy-ud-Din, petitioner herein, who stands arrested in case F.I.R. No.65/93 dated 17-5-1993, registered under section 324/148/149, P.P.C. at Police Station Kakrali, District Gujrat, at the instance of Tanvir Ahmad.

2. According to the F.I.R, the two injured witnesses namely Mst. Irshad Begum and Ishtiaq-ur-Rehman were sitting on the roof of their shop when the petitioner armed with .12 bore gun, Safdar with .12 bore gun, Muhammad Riaz armed with .7 mm rifle, and Zulfiqar armed with a Mauser fired at them, at the Lalkara raised by Siraj Din. The shot fired by Riaz hit Ishtiaq, P.W., in his right leg while the shot fired by Safdar hit Mst. Irshad Begum's left flank whereas the shot fired by the petitioner hit her hip joint. Motive for the attack was stated to be that a day earlier. a she donkey of Riaz accused had destroyed the "Shaftal" crop of Ishtiaq, P.W., who rounded it up and while taking it to cattle pond, Riaz accused took up row with him and abuses were exchanged, whereupon Riaz went away threatening him to avenge it.

3. According to the doctor the injury attributed to the petitioner is "Ghayr Jaifah Damiah" punishable with one year's R.I., while the injury attributed to Safdar, co-accused, is "Jaifah" punishable with 10 years' R.I.

4. During the investigation the local S.H.O. namely Arif Hussain found all the accused guilty while Shahid Farooq D.S.P. (HQ), excepting Safdar accused held the rest (including the petitioner) as innocent. It may be mentioned that Additional S.P. Gujrat also investigated this case and recommended all the accused to be challaned to Court for receiving a judicial verdict as to their guilt or innocence.

5. The petitioner's bail plea was declined by the lower Court, hence this petition.

6. It is vehemently contended on behalf of the petitioner that since he has been found innocent by D.S.P. (HQ) namely Shahid Farooq, therefore, no matter if he has been found guilty in other investigations, he is entitled to the grant of bail as the divergent findings ought to be resolved m his favour as such his case is covered by subsection (2) of section 497, Cr.P.C. Learned counsel appearing on behalf of State assisted by learned counsel for the complainant has vehemently opposed the petition saying that not only the petitioner is, vicariously liable for the injuries caused by his co-accused Safdar with fire-arm which is in the nature of "Jaifah" but the finding of innocence given by D.S.P (HO) is also not based on good and sound material rather that is mala fide.

7. I have considered the contentions of learned counsel for the parties and also perused the record. The police file shows that about 61 persons appeared during the investigation to state about the innocence of the petitioner, therefore, it cannot be said that the finding of innocence recorded by D.S.P. (HQ) is against the material on record. In the circumstances, I am of the view that the petitioner is entitled to grant of bail under subsection (2) of section 497, Cr.P.C. Consequently this petition is allowed and it is directed that the petitioner be released subject to his furnishing bail bond in the sum of Rs.10,000 with one surety in the like amount to the satisfaction of the trial Court.

N.H.Q./G-175/L Bail allowed.