' MUHAMMAD YUNUS SURAKHVI, C.J.--- This appeal has been directed against the judgment passed by the Shariat Court on 30-4-2003, whereby two revision petitions filed by the appellant herein against the orders of the District Court of Criminal Jurisdiction, Bhimber dated 16-1-2002 and 17-4- 2002, were dismissed.
2. The necessary facts, giving rise to the present appeal, are that the appellant lodged a report at Police Station Bhimber on 27-11-2001 stating therein that at 4-15 p.m. He reached Chapran Link Road on his tractor trolley where Haq Nawaz, Mansha Hussain and Gulzar Hussain were fighting with his brother-in-law, Muhammad Akram. It is further alleged in the report that on seeing him, the accused-respondent, Mansha Hussain, made a fire which hit the tyre of the tractor trolley of the complainant and the tyre burst; resultantly complainant-appellant, Mukhtar Ahmad, came down from his tractor trolley and then the other accused-respondent, Haq Nawaz made a fire with his five shorter gun on the complainant which hit him under the joint of left knee and his left thumb.
The complainant - appellant fell down and the accused-respondents with Gulzar Hussain made good their escape from the scene of occurrence. The occurrence is stated to have been witnessed by Muhammad Tahir and Muhammad Siddique apart from the complainant.
3. The accused-respondent, Haq Nawaz, moved for bail on 30-3-2002 under section 497, Cr.P.C. For the offences under sections 324, 336,' 337-F(v) and (vi), A.P.C. Read with section 13/20/65, Arms Act before the District Court of Criminal Jurisdiction, Bhimber which was granted b) the said Court on 17-4-2002. The accused-respondent, Mansha Hussain, moved for pre-arrest bail on 29-12-2001 for the same offences which was confirmed by the District Court of Criminal Jurisdiction, Bhimber on 16-1-2002. The above mentioned both the bail granting orders were challenged in the Shariat Court by the complainant-appellant through two revision petitions but the learned Judge in the Shariat Court dismissed the same vide his consolidated judgment, dated 30-4-2003. It is the aforesaid judgment of the Shariat Court which is the subject-matter of present appeal. The learned counsel for the appellant in support of his contentirlis relied upon a case reported as Shabeer Ahmed. Alias Shibli v. The State 1999 PCr.LJ 1348, wherein it was held that the offence with which the accused was charged, no doubt, did not fall within the prohibition contained in section 497(1), Cr.P.C. But the injury caused by him had permanently disabled the complainant and his release on bail at such stage was not desirable. The bail was thus, declined to the accused for allegedly committing the offences under sections 337-F(v) and 109, Penal Code. It was further observed in the said authority that the Court can decline to admit an accused to bail even in the cases not covered by the prohibitory clause of section 497(1), Cr.P.C., where there are exceptional circumstances.
4. In support of appeal it was vehemently contended by Ch. Ali Muhammad, the learned counsel for the appellant, that the orders passed by the Shariat Court as well as the District Court of Criminal Jurisdiction, Bhimber are perverse and capricious and as such the same are liable to be dismissed. The learned counsel contended that both the Courts below fell in error in allowing the pre-arrest bail to Mansha Hussain and after arrest bail to Haq Nawaz. The learned cow counsel strenuously argued that the complainant-appellant has been injured by fire-arm in the incident and the F.I.R. Of the occurrence was lodged promptly. According to him the specific role and overt act are attributed to accused-respondents in the F.I.R. The occurrence is of daylight and the eye- witnesses fully support the case of the prosecution on all counts, as such there are reasonable grounds to connect the accused-respondents with the offences alleged which are non-bailable and fall under the prohibitory clause of section 497, Cr.P.C. The learned counsel also argued that in the cases, which involve attempt to murder and injuries are caused by fire-arm, the bail is not to be allowed as a matter of routine but it needs serious thought and consideration to make the tentative assessm ent of the material brought on record by the prosecution or the defence and to form an opinion as to whether reasonable grounds exist which connect the accused with the commission of alleged offences. The learned counsel submitted that the orders granting concession of bail to the accused-respondents are against the settled principles of law relating to bail matters. The learned counsel contended that the medical evidence and the Electrodiagnostic Result given by Pakistan Institute of Medical Science, Islamabad, fully support the version of the prosecution, as such it was craved by the learned counsel for the appellant that the bail of both the accused-respondents may be cancelled.
5. Controverting the arguments raised by the learned counsel for the appellant, Ch. Muhammad Azam Khan, the learned counsel for the accused-respondents, submitted that from the prosecution story itself it transpires that according to the version of complainant-appellant, as mentioned in the F.I.R., when he reached the scene of occurrence, then Mansha Hussain, Gulzar Hussain, sons of Khadim Hussain and Haq Nawaz were quarrelling with his brother-in-law, Muhammad Akram. However, when the accused saw the tractor trolley of the complainant- appellant, Mansha Hussain fired with his kalashnikov which hit the tyre of the tractor trolley and the same was burst. The moment Mukhtar Ahmad, complainant-appellant, came down from the tractor trolley, Haq Nawaz, accused-respondent, with his five shorter gun fired upon him which hit his left knee and one of the pallets caused injury on his left thumb upon which the complainant fell down and the accused persons made good their escape from the scene of occurrence. The learned counsel emphasized that if the accused persons had the intention to cause murderous assault, then they could have used their fire-arms upon Muhammad Akram, with whom they were fighting, whereas the complainant-appellant reached later on and if he had not come on that way, the eventuality of causing fire-arm injuries upon him would not have arisen at all. Thus, the learned counsel maintained that the accused-respondents had no intention to kill the complainant- appellant. The learned counsel further argued that both the Courts below, i,e, the District Court of Criminal Jurisdiction, Bhimber and the Shariat Court, have exercised their judicial discretion in granting the bail to the accused-respondents and this Court normally should not interfere in the judicial exercise of discretion. The learned counsel for the accused-respondents in support of his contentions relied upon a case of this Court titled Muhammad Miskeen v. Muhammad 1992 SCR 379, wherein it was held that the challan has already been filed in the Court. Obviously, the accused cannot now be handed over to the police for custody on the ground that he is required by the police for completion of investigation. It was further observed that the Supreme Court does not interfere in the discretion exercised by the Courts below in bail matters until and unless the same is shown to be perverse or against the law.
6. Sardar Abdul Razik Khan, the learned Additional Advocate-General, appearing on behalf of the State, fully supported the arguments advanced by the learned counsel for the complainant- appellant.
7. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The prosecution story prima facie finds support from the prompt lodging of F.I.R. The evidence of the eye-witnesses, namely Mukhtar Ahmad, complainant- appellant, Muhammad Tahir, Muhammad Siddique and Gulzar Hussain, in their statements recorded under section 161, Cr.P.C. It is further supported by the medical evidence and the Electrodiagnosti Result given by Pakistan Institute of Medical Sciences, Islamabad. In the medical report, on the backside of Annexure "C/2", the first injury is mentioned as a lacerated wound on left thumb which is one inch in length and 1/4 inch wide and the same occurred due to pallet touching the skin. The second injury is described as a pallet injury with irregular margins on medial coridyle and causing damage to nerves of the area, pallet passes from posterior aspect of left knee. The Electrodiagnostic Result given by Pakistan Institute of Medical Science, Islamabad is as under:- "Findings: Left CPNS is irresponsive to peak stimulation. Left TN showed conduction block at pop fossa.
' Conclusions. Complete axonotemesis of left common pernoreal nerve below popliteal fossa.
Parital conduction block at popliteal fossa."
' This shows that the injury has partially damaged the left knee of the injured person which is grievous in nature.
8. The contention raised by the learned counsel for the accused-respondents that if the accused had the intention to kill the complainant-appellant, then why they did not open fire when they were already quarreling with the brother-in-law of complainant-appellant, Muhammad Akram, is devoid of any legal force as the intention to kill can be developed even at the spur of the moment.
It is not essential that the assault should be only with the purpose of committing murder but at the same time if an accused has the knowledge that the fire-arm used by him can cause the death of any person, the accused shall be guilty of intentional murder or murderous assault.
9. So far as the case of Mansha Hussain accused-respondent No,2, is concerned, he has been attributed only a fire with his kalashnikov on the tyre of the tractor trolley of the complainant- appellant on account of which the tyre was burst. He is not attributed any further overt act to open fire upon the complainant-appellant or the other eye-witnesses. Therefore, we do not find force in the argument of the learned counsel for the appellant that his case should also be taken at par with the case of Haq Nawaz, accused-respondent No,
1. The appeal, therefore, filed by the appellant against the accused-respondent, Mansha Hussain, fails and the orders passed by the trial Court as well as the Shariat Court for allowing concession of bail to Mansha Hussain are maintained.
10. So far as the accused-respondent, Haq Nawaz, is concerned, in his bail matter the Courts below, i,e, the District Court of Criminal Jurisdiction, Bhimber and the Shariat Court, have clearly fallen in error in allowing concession of bail to him as he is prima facie connected with the commission of alleged offences and one of the injuries caused on the victim has caused fracture of knee joint which is of grievous nature. Both the trial Court as well as the Shariat Court failed to advance any cogent reason for releasing the accused-respondent, Haq Nawaz, on bail. The Shariat Court, in our view, has committed an error by observing that whether the accused persons made an attempt to commit Qatl-e-Amd and thus committed an offence under section 324, A.P.C. Is still a matter of further inquiry while the offence under section 337-F(iv) does not fall within the prohibitory clause of section 497, Cr.P.C. The Shariat Court lost sight of the fact that if an accused person fires upon a person which hits the victim then even if there be no intention to kill, yet if he had the knowledge that the injury can cause the death of the victim, the case falls clearly within the ambit of murderous attempt.
11. In this view of the matter, we accept the appeal by setting aside the orders passed by the District Court of Criminal Jurisdiction, Bhimber on 17-4-2002 and that of the Shariat Court dated 16-6-2003 to the extent of allowing bail to accused-respondent, Haq Nawaz. The personal bond and surety bond of the accused-respondent, Haq Nawaz, shall be cancelled and he shall be taken into custody forthwith to face the trial of the case registered against him. He will be at liberty to move fresh per.0 application for his bail after recording the evidence of the prosecution witnesses.