PLJ 2023 Cr.C. (Note) 56
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakikstan Penal Code, 1860--Ss. 324/337-F(vi)/ 337-F(v)/ 337-A(i)/148/149/379/411--Delay in medical examination--Post arrest bail--grant of--Specific allegation against the petitioner is that he while armed with pistol 30 bore made fire shot which hit on the back side of Patella (knee) of injured--Petitioner did not repeat the fire on injured--The injured was not medically examined on the same day--Rather he put his appearance before the Medical Officer with a considerable day of about twenty days--The question of intention to kill shall be determined by Trial Court on conclusion of trial proceedings--Petitioner is behind the bars since his arrest and no more required for investigation--This application is allowed.
[Para 3, 5 & 6] A, B, C, D
2020 SCMR 971; 2021 SCMR 63 ref.
Khawaja Qaisar Butt, Advocate for Petitioner.
Mehr Liaquat Ali Advocate for Complainant.
Mr. Ashfaq Ahmad Malik Deputy Prosecutor General for State.
Date of hearing: 8.11.2022.
PLJ 2023 Cr.C. (Note) 56
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
MUHAMMAD YOUSAF--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 7120-B of 2021, decided on 8.11.2022.
Judgment
Muhammad Yousaf (petitioner) has applied for his post arrest bail in case FIR No. 295 recorded on 11.05.2022 under Sections 324/ 148/149/337-F(v)/337-F(vi)/337-A(i)/379/411, PPC at Police Station Alpa District Multan.
2. Facts of the case are that Khuda Bakhsh (complainant) reported to police that on 11.05.2022 at about 06:15 am Muhammad Yousaf/petitioner armed with pistol .30 bore alongwith others committed criminal assault and made fire shot on the person of Mushtaq Ahmad and other co-accused with their respective weapons also caused injuries on the person of injured.
3. Specific allegation against the petitioner is that he while armed with pistol. 30 bore made fire shot which hit on the back side of patella (knee) of Mushtaq Ahmad.
4. Heard.
5. As per contents of FIR, petitioner did not repeat the fire on injured Mushtaq Ahmad. The injured was not medically examined on the same day though it was an occurrence of 11.05.2022 at 06:15 am rather he put his appearance before the Medical Officer on 01.06.2022 with a considerable day of about twenty days. Learned counsel for the complainant states that in fact injured remained under treatment that was the reason for delay of conducting medical examination on 01.06.2022. On medical examination the injury attributed to petitioner on the person of injured was declared under Section 337-F(vi), PPC, which does not fall under the prohibitory clause of Section 497, Cr.P.C. In Muhammad Faisal vs. The State and another 2020 SCMR 971 the Hon’ble Supreme Court of Pakistan was pleased to grant the bail to an accused, who made two fires on non-vital parts of the body of injured falling under Section 337-F(vi), PPC. It was observed also there that the question of intention to kill shall be determined by Trial Court on conclusion of trial proceedings. Such facts apparently make the case of the petitioner one of further inquiry into his guilt as contemplated under Section 497 (2) of the Code of Criminal Procedure, 1898. The Hon’ble Supreme Court of Pakistan in the case “Jahanzeb and others versus State through A.G. Khyber Pakhtunkhwa Peshawar and another” (2021 SCMR 63), with reference to Section 497 Cr.PC, has held as under:-.
“……….Perusal of the aforesaid provision reveals the intent of the legislature disclosing pre-condition to establish the word “guilt” against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of Section 497(2), Cr.P.C.”
6. Petitioner is behind the bars since 03.06.2022 and no more required for investigation. He has also no previous record of his involvement or conviction in any other case.
7. Resultantly, this application is allowed and petitioner is admitted to bail subject to his furnishing bail bonds in sum of Rs. 1,00,000/- (one lac) with one surety to the satisfaction of learned trial Court.
8. It is made clear that in case of misuse of concession of bail by petitioner during trial or delay in conclusion of trial because of his or anyone else acting on his behalf, the learned trial Court shall be at liberty to recall this bail granting order.
(M.A.B.) Bail allowed
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