FAREED BAKSH Versus State
ORDER
ABDUL SAMI KHAN, J.--- Through this petition under section 497, Cr.P.C. the petitioner has sought bail after arrest in case FIR No.340/16 dated 06.05.2016 under sections 324, 337-F(iii), 148, 149, P.P.C., Police Station Hujra Shah Mukeem, District Okara.
2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail after arrest and only tentative assessment is allowed at this stage. It has been noticed that although the petitioner is named in FIR, yet the fact remains that the injury attributed to him therein is on right leg and foot of Muhammad Ashfaq injured and admittedly he has not repeated the fire, therefore, the question as to whether provisions of offence under section 324, P.P.C. are attracted in this case or not shall be determined by the learned trial court after recording evidence. So far as the remaining offence under section 337-F(iii), P.P.C. is concerned, the same does not fall within the prohibitory clause of section 497, Cr.P.C. During me course of investigation, it has come on the surface of record that the petitioner was merely present at the spot at the time of occurrence and he did not cause any injury to said Ashfaq Ahmad injured, therefore, in view of the allegations contained in FIR and the facts emerged during the course of investigation, prima facie the case against the petitioner has become a case of two versions; one put forward by the complainant in FIR and the other came on record during investigation and which version is correct shall be determined by the learned trial court after recording evidence. Reliance can easily be placed upon 2012 SCMR 1137 (Ehsan Ullah v. The State) wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:-
"This shows that in the present case the prosecution itself has two versions vis-a-vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused form behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt."
In this regard, guidance can also be sought from a latest pronouncement of Hon'ble Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State and others" (2016 SCMR 18), wherein the Apex Court was pleased to observe as under:-
"Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice."
The questions of sharing common intention and vicarious liability of the petitioner shall be determined by the learned trial court after recording evidence. Admittedly the petitioner is previous non-convict; he is behind the bars since 29.09.2016; investigation to his extent is complete; nothing has been recovered from the petitioner during the course of investigation and he is no more required for further investigation. It is also settled law that benefit of doubt can be given to the accused even at bail stage, therefore, no useful purpose would be served by keeping the petitioner behind the bars at this stage.
3. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs.l00,000/- (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.
JK/F-3/L Bail allowe