AJMAL alias AIJAZ Versus State
ORDER
SHAHNAWAZ TARIQ, J.--- Through captioned post arrest bail application, applicant Amjal alias Aijaz has impugned order dated 24.08.2012, passed by the Court of learned Additional Sessions Judge, Ubauro, whereby his earlier application was declined.
2. Relevant facts narrated in instant FIR are that allegedly applicant along with other culprits caused firing upon the complainant party and due to firing of co-accused, Allah Bux father of complainant succumbed to his injuries at the spot, while Shoukat expired during the medical treatment at Hospital. Allegedly, present applicant caused bullet injuries to injured Imran on his left arm.
3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in this case by the complainant as parties are disputed over landed property; that applicant at the time of alleged incident was about 16 years old as such a separate challan was submitted before the Court and being youthful offender, a separate charge against applicant has also been framed; that applicant was arrested on 15.3.2012 but prosecution has not examined a single witness during the trial before the trial Court; that as per medical certificate injuries caused to injured Imran are Ghayr-Jaifah Mutallahimah, which is punishable up to three years; that applicant has not caused any injury to both the deceased; that applicant has already been acquitted by the Court of learned Judicial Magistrate, Ubauro, in the case under section 13(d) of Arms Ordinance vide FIR No.57 of 2012, which has created doubt regarding the allegations leveled by the prosecution against applicant. He relied upon 1999 SCMR 1320, 2005 PCr.LJ 596 and 2002 MLD 1817.
4. While controverting the above submissions, learned counsel for complainant contended that name of applicant is mentioned in FIR with specific role of causing fire arm injuries to injured Imran with common intention, as such he cannot claim concession of bail on the ground of tender age. However, he candidly submits that prosecution has not challenged the acquittal order passed by learned Judicial Magistrate in case of Arms Ordinance.
5. Learned A.P.G. supported the arguments advanced by learned counsel for complainant and submitted that applicant is not entitled for grant of bail at this stage.
6. I have perused the material available on record and considered arguments advanced by learned counsel for the parties. In case of Muhammad Akram (supra), it was observed that accused had not been attributed any injury to deceased and even no overt act towards causing of death of deceased was alleged. No evidence was produced to establish that accused shared any common intention with other co-accused. Injury attributed to accused on complainant fell either in section 337-A(i) or 337-A(ii), P.P.C. to which Prohibitory Clause of section 497, Cr.P.C. was not attracted and said injury had been declared as Shajjah-i-Khafifa. No motive had been attributed to accused for participating in alleged occurrence or injuring complainant. In case of Attaullah (supra), honourable Supreme Court has observed that accused has not caused any injuries to deceased and simple injuries were inflected to PWs, accused was enlarged on bail.
7. Indeed, record reflects that co-accused caused firearm injuries to both deceased which resulted in to their death, while applicant had neither attacked upon deceased nor caused any injury to both deceased and the only allegation against him is that he fired gun shots and PW Imran sustained injuries on his left arm and as per medical certificate both injuries caused to the injured are Ghayr-Jaifah Mutallahimah, which are punishable up to three years and does not attract the restraining clause of section 497, Cr.P.C. Moreover, there is no strong evidence to establish the factum of common intention against applicant and the question of common intention would be determined by the learned trial Court after recording statement of P.Ws.
8. Complainant has not challenged the submission of Challan by the Investigating Officer separately treating the applicant as juvenile offender and as per his birth certificate, the age of applicant at the time of the alleged incident, was 16 years and five months. Consequently separate charge has been framed against applicant by the learned trial Court. It is significant to mention that another FIR No.57 of 2012, under section 13(d), of Arms Ordinance, was lodged at P.S Ubauro regarding recovery of unlicensed .12-bore SBBL gun from applicant, allegedly used by him in the commission of alleged offence, however, after recording evidence of the P.Ws, learned Judicial Magistrate, Daharki, acquitted present applicant vide judgment dated 31.08.2013, but prosecution has not challenged the said judgment by filing acquittal appeal as entire case of prosecution against applicant is based upon the use and recovery of said crime weapon and after his acquittal from said case, his case requires serious consideration.
9. Admittedly, applicant is behind the bars since 15.03.2012, but prosecution has failed to examine a single witness during the period of about 43 months to substantiate the charge against applicant which reflects that complainant is not serious to conclude the trial but he is merely interested to keep the applicant in custody. Considering the above circumstances, I am of the view that further detention of applicant will not serve any useful purpose and it is well settled that any iota of doubt, even at the bail stage, shall be counted in favour of accused and bail cannot be withheld as a punishment.
10. For the facts and circumstances referred supra, applicant has succeeded to make out a case for grant of bail on the ground of further inquiry as envisaged in section 497(2), Cr.P.C. Consequently, applicant is admitted to post arrest bail subject to furnishing solvent surety in the sum of Rs.200,000/- and P.R. bond in the like amount to the satisfaction of the learned trial Court.
11. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits.
SL/A-1/Sindh Bail allowed.