SHABBIR Versus THE STATE

ORDER

This is an application for post-arrest bail moved by Shabbir and Niazi sons of Baig residents of Chak No.200/P, Tehsil Sadiqabad in case F.I.R. No.154/94 registered at Police Station Kot Sabzal on 18-9-1994 at 9-30 p.m. under section 324/34, P.P.C. on the statement of one Muhammad Ramzan son of Ghulam Ali of their Chak.

2. The complainant claimed in his statement that he was cultivating the land belonging to one Ghulam Muhammad. At about 5-00 p.m. on the day of occurrence he was coming back from the house of one Khair Muhammad. When he was at a distance of about 2 Acres from his own house, he was given a call by Shabbir accused from behind and was asked to stop. The complainant turned back and saw that Shabbir was armed with a gun. He, therefore, did not stop. On this the accused fired straight at him hitting him in his leg and shoulder. On the alarm raised by him and on hearing the report of firing, Jewan, who happened to be an uncle f the complainant, and Manzoor Ahmad son of Jewan ran towards him after seeing the occurrence. Meanwhile Niazi son of Baig armed with pistol, Wazir Ahmad son of Baig and Baig son of Shali also reached there. Baig then raised a Lalkara to teach the complainant a lesson for helping Ghulam Muhammad aforesaid. Niazi also fired with his pistol hitting Jewan at his ankle. Shabbir Ahmad then fired a second shot with his gun hitting Manzoor Ahmad at his cheek, right chest anlower leg. The reports of firing attracted some other persons named Sobhara and Allah Dad alongwith other residents of the village. The motive behind the occurrence, as stated by the complainant was that 5/6 days earlier, he accompanied Jafar Hussain son of Ghulam Muhammad and Manzoor Ahmad aforesaid, in putting some earth in the Ihata of Ghulam Muhammad with a tractor which Ihata was adjacent to the house of Baig on which there was exchange of hot words.

3. An application moved by these petitioners for post-arrest bail purely on the statutory ground under proviso 3 to section 497, Cr.P.C. was dismissed by the learned Sessions Judge, Rahimyar Khan on 17-10-1995 after observing that as many as seven adjournments could be attributed to the accused for delay in conclusion of trial in spite of the fact that charge was framed on 18-12-1994 and 2-1-1995 was the first date for evidence. He, therefore, refused to invoke the provisions of statutory ground.

4. The petitioners have now claimed bails on the grounds inter alia (i) that they have been falsely implicated; (ii) that they are behind the bars for more than one year during which period not a single P.W. has so far been examined; (iii) that none of the injuries attributed to them is on vital part and as such their case does not fall within the purview of section 324, P.P:C. and is of further inquiry into their guilt; and (iv) that no empties or blood-stained earth was recovered from the place of occurrence.

On L8-3-1996, the learned counsel for the petitioners urged before the Court that petitioners were entitled to bail as of right on statutory ground. The learned counsel for the complainant, however, opposed him placing reliance on the order, dated-17-10-1995 passed by the learned Sessions Judge and asserting that it was mainly the accused who were responsible for delay in the conclusion of trial. The learned counsel for the petitioners was, therefore, directed to place before the Court for perusal certified copies of the interim, orders on the order sheet. On 25-3-1996, besides submitting the certified copies of the order sheet, the learned counsel for the petitioners also claimed that the mother of the petitioners had died on 22-3-1996 and as such they were entitled to the concession of bail on compassionate ground also. The factum of the death of Mst. Pathani Bibi wife of Baig has been verified by the police. She happened to be the real mother of Niaz Hussain alias Niazi accused and step-mother of Shabbir.

6. I have heard both the parties and have also gone through the record carefully. I find considerable force in the contention of the learned counsel for the petitioners that the intention of the accused can only be determined at the trial and keeping in view the nature and seats of injuries which are all simple ands not on vital parts it can safely be inferred that prima facie, there are no reasonable grounds for believing that the accused had committed the offence with which they are being charged and that there are sufficient grounds for further inquiry into their guilt.

7. Without entering into the merits of the case but keeping in view the fact that the petitioners should not be kept behind the bars indefinitely- as a punishment before trial, only because there is an allegation of attempt to commit Qatl-i-Amd which offence is covered under section 324, P.P.C. Their case is definitely of further inquiry into their guilt.

8. Even otherwise, they are entitled to the concession of bail being accused of an offence not punishable with death and having been detained for a continuous period exceeding one year when the conclusion of the trial is not yet in sight. They were arrested on 28-9-1994, I have carefully gone through the, order sheets, photo copies of which have been placed on record, and can safely say that even seen mathematically, the prosecution was responsible for more; adjournments than were the accused.

For all these reasons, I find that the petitioners have a good case for bail. They are accordingly enlarged on bails subject to their furnishing bail bonds in the sum of Rs.50,000 each with one surety in the like amount each to the satisfaction of learned trial Court.

N.H.Q./S-37/,L Bail allowed