Syed SHAHZAIB KAMAL Versus State

ORDER

MUHAMMAD AHSAN BHOON, J .---The petitioner is an accused of cross version in case F.I.R No.552 of 2007, registered under sections 302/324/337-A(i), (ii) 337-F(i)/148/149, P.P.C. with Police Station, Civil Lines, Gujrat, lodged on the statement of Syed Shaukat Kamal (father of the petitioner).

2. As per prosecution story of F.I.R Muhammad Waris, accused armed with pump action (2) Riaz Ahmad armed with pistol .30 bore, (3) Zulfiqar Anjum, Tanveer, Walayat, and Ameen along with 20/25 unknown persons transgressed in the house of the complainant and they gave sever beating to the son of the complainant Shahzaib Kamal (petitioner) and other inmates of the house including the wife and children of the complainant. It was further alleged in the F.I.R that due to the quarrel, people from the accused party were also injured and they took away valuable articles including cash amount.

3. In cross version lodged by Tanveer Hussain, who is accused of F.I.R. , he alleged that he along with others namely Walayat, Muhammad Ameen, Muhammad Naeem, Muhammad Ashraf, and Riaz went to the house of Shaukat Kamal, Advocate in order to effect compromise as the time was given by the said accused Shaukat Kamal, because he was tenant at house where he was residing and negotiations were going on for vacation of the same and at that point of time Shaukat Kamal armed with stick, Shahzaib (petitioner) armed with stick, and Khurram Kamal armed with stick along with 5/6 unknown persons came at the spot. Shaukat Kamal said why they have come there and suddenly attacked upon Walayat and with Sota caused injury on the right of his head, who was seriously injured and became unconscious, thereafter second blow of Sota was caused by Shahzaib upon Rasheed injured P.W. which hit on his right eye, accused Khurram Abbas gave blow to Muhammad Ameen which hit on his left head and thereafter all the accused gave beating with their respective weapons.

4. The learned counsel for the petitioner contends that the petitioner has been attributed specific role of causing injury to Rasheed P.W., which injury was found Shajjah Khafifa and the same falls in the category of bailable offence; that he was arrested on 13-7-2007 and is no more required for the purpose of investigation, that nothing was recovered from him during the investigation, hence his case falls within the ambit of subsection (2) of section 497, Cr.P.C. particularly the occurrence took place in the house of the petitioner.

5. On the other hand, learned D.P.-G. assisted by learned counsel for the complainant of cross-version has opposed the prayer for grant of bail by submitting that the petitioner was member of unlawful assembly; that he along with others attacked on the injured PW as well as the deceased and with their common intention and common object he has caused injury to Rasheed P.W.; that he was found guilty during the investigation; that the trial has commenced, so he is not entitled to the grant of bail and no case for further inquiry is made out. He relies on Allah Ditta and others v. The State 1990 SCMR 307, Arif Din v. Amil Khan and another 2005 SCMR 1402, Muhammad Arshad v. The State 2004 SCMR 222, Muhammad Nawaz v. The State 2002 SCMR 1381 and Ehsan Akbar v. The State and 2 others 2007 SCMR 482.

6. After hearing the learned counsel for the parties and going through the record, I have found that prima facie this is a case of two versions and although during the course of investigation it was concluded by the Investigating Officer that the complainant party of cross version came at the spot for the purpose of compromise that is why section 452, P.P.C. was deleted yet it is an admitted fact that occurrence took place in the house where the petitioner as well as his father was residing and the petitioner who was declared juvenile offender by the learned trial Court vide its order dated 24-3-2008, has suffered five injuries at his person and the specific role attributed to him was of causing injury to Rasheed Ahmad P.W. and that injury was found Shajjah Khafifah which falls within the provision of section 337-A(i), P.P.C. and the same is bailable.

7. On Court query and as per copy of interim order sheet passed by the learned trial Court produced by the learned counsel for the complainant no doubt charge has been framed but not a single witness has yet been recorded till to date. Even otherwise, the case of the petitioner falls within the ambit of subsection (2) of section 497, Cr.P.C. requires further probe and inquiry, and if case of further inquiry is made out the petitioner accused is entitled to bail as of right and not as grace. It is settled proposition of law that if the case of further inquiry is made out even during the trial prior to its conclusion, then the accused cannot be denied the same right, but in the present case no witness has yet been examined. The case-laws referred by the learned counsel for the complainant are distinguishable from the facts and circumstances of the present case.

8. For what has been discussed above, this petition is allowed and petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.

N.H.Q./S-50/L Bail allowed.