6/22/24, 11:57 AM 2017 P Cr

2017 P Cr. L J 1246

[Lahore]

Before Abdul Sami Khan, J

MUHAMMAD USMAN alias SANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.16048-B of 2016, decided on 12th January, 2017.

(a) Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 324, 337-F(iii), 109 & 34---Attempt to
commit qatl-i-amd, hurt, abetment, common intention---Bail, confirmation of---Further
inquiry---Case of two versions---Mala fide intention---Ulterior motive---Delay of
twenty three days in registration of FIR---Accused had been assigned role of making a
fire shot, which allegedly hit the injured on left thigh and caused damage to his left
testicle, yet during the course of investigation one conducted by local police and the
second by Deputy Superintendent of Police, it came on the surface of record that injury
on the person of injured was caused only by one co-accused---Accused was not present
at the spot and he was found involved only to the extent of allegation of abetment, but
his active participation in the alleged occurrence could not be established---
Complainant had not mentioned name of co-accused in FIR and only names of three
accused i.e. present accused along with two other co-accused were mentioned therein--
-Outcome of investigation that co-accused had caused firearm injury on the person of
injured was prima facie found support from his medico legal certificate, wherein the
said injured had got mentioned in brief history that four persons were present at the
spot at the time of occurrence, but complainant had mentioned names of only three
accused in FIR by excluding co-accused---Prima facie case against the accused had
become a case of two versions; one put forward by complainant in FIR and other came
on record during investigation and as to which version was correct would be
determined by Trial Court after recording of evidence---Accused had also got
registered FIR wherein injured was named as the accused with specific role of causing
fracture of index finger of accused---Accused was previous non-convict---Questions of
sharing common intention and vicarious liability of accused in the case were to be
determined by Trial Court after recording of evidence---Bail before arrest was meant to
save innocent persons from the clutches of police, rigors of remand and investigation--
-Accused had already joined investigation which was complete to his extent, therefore,
no useful purpose would be served by sending him behind the bars---Ad interim bail
already granted to accused was confirmed accordingly.

Ehsan Ullah v. The State 2012 SCMR 1137 and Zaigham Ashraf v. State and others
2016 SCMR 18 rel.

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(b) Criminal Procedure Code (V of 1898)---

----S. 498---Bail before arrest---Scope---Bail before arrest was meant to save innocent
persons from the clutches of police, rigors of remand and investigation.

Ch. Azeem Sarwar for Petitioner along with Petitioner in person.

Irfan Zia, Deputy Prosecutor General, Shahid, DSP and Nasir Abbas, ASI with
record for the State.

Imran Khalid for the Complainant.

ORDER

ABDUL SAMI KHAN, J.---Through this petition under section 498, Cr.P.C.
Muhammad Usman alias Sani petitioner has sought pre-arrest bail in case FIR
No.967/16 dated 07.09.2016, under sections 324, 337F(iii), 109, 34, P.P.C., registered
at Police Station Saddar Faisalabad.

2. I have heard the learned counsel for the parties and have gone through the record
with their able assistance. This is bail before arrest and only tentative assessment is
required at this stage. It has been noticed by this Court that there is a delay of twenty
three days in registration of FIR, which has not been explained therein, which prima
facie shows that the FIR has been got recorded after due deliberation and consultation.
Although in FIR, the petitioner has been assigned the role of making a fire shot, which
allegedly hit Basharat Ali, brother of the complainant, on left thigh and caused damage
to his left testicle, yet during the course of investigation one conducted by the local
police and second by the Deputy Superintendent of Police, it came on the surface of
record that the injury on the person of Basharat Ali was caused only by one Asif Ali;
the petitioner was not present at the spot and he was found involved only to the extent
of allegation of abetment, but his active participation in the alleged occurrence could
not be established. It has also been noticed by this Court that the complainant has not
mentioned the name of Asif Ali co-accused in FIR and only the names of three accused
i.e. present petitioner Muhammad Usman alias Sani along with accused Shahbaz and
Mohsin are mentioned therein. The outcome of investigation that Asif Ali co-accused
had caused firearm injury on the person of Basharat Ali injured prima facie finds
support from his medico legal certificate, wherein the said injured has got mentioned in
brief history that four persons were present at the spot at the time of occurrence, but
the complainant has mentioned the names of only three accused in FIR by excluding
Asif Ali co-accused. 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 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:-

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"This shows that in the present case the prosecution itself has two versions vis-
-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 from 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 the pronouncement of Hon'ble
Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State and others" (2016
SCMR 18), wherein the apex Court has been 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."

Apart from the above, the petitioner has got registered an FIR No.972/16 dated
08.09.2016, under sections 337F(vi), 337H(2), 34, P.P.C., Police Station Saddar
Faisalabad, wherein Basharat Ali injured is named as accused with specific role of
causing fracture of index finger of the present petitioner. Admittedly, the petitioner is
previous non-convict. The questions of sharing common intention and vicarious
liability of the petitioner in this case are to be determined by the learned trial Court
after recording of evidence. Bail before arrest is meant to save innocent persons from
the clutches of police, rigors of remand and investigation and in this case the petitioner
has already joined the investigation which is complete to his extent, therefore, no
useful purpose would be served by sending him behind the bars at this stage.

3. For what has been discussed above, false implication of the petitioner with mala fide
intention and ulterior motive in order to counter FIR No.972/16 dated 08.09.2016,
under sections 337F(vi), 337H(2), 34, P.P.C., Police Station Saddar Faisalabad, cannot
be ruled out of consideration. Resultantly, this petition is allowed and the ad interim
pre-arrest bail already granted to the petitioner vide this Court's order dated 16.11.2016
is confirmed subject to furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty
thousand only) with one surety in the like amount to the satisfaction of learned trial
court.

4. The observations made above are tentative in nature and are strictly confined to the
decision of this bail petition only.

WA/M-27/L Bail confirmed.

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