This is bail after arrest application in case F.I.R. No, 479 dated 8.9.2003 under Section 324/34 P.P.C. registered at Police Station Hujra Shah Muqeem, Distt. Okara on the report of Muhammad Akram, complainant.
2. According to the prosecution allegations on 7.9.2003 at about evening time Muhammad Sarwar younger brother of Muhammad Akram complainant had gone to the shop of one Yousaf to purchase ice where the petitioner alongwith his two other co-accused, namely, Saif Ullah and Faiz Ahmad were present who cut jokes with Muhammad Yousaf to which he took offence and they ran into a brawl. However, the residents of the area separated them and the petitioner alongwith his co-accused hurled threats. The complainants younger brother narrated the said occurrence to the complainant at about 8.00 p.m. and while both of them were proceeding to their house from their cattle-shed the petitioner armed with .12 bore gun Saif Ullah co-accused armed with .12 bore carbine and Faiz Ahmad empty handed accosted them. Saif Ullah co-accused called out a lalkara that Muhammad Aslam injured P.W. be taught a lesson for picking up scrimmage with them and thereafter the petitioner alongwith his co-accused Saif Ullah fired one shot each which hit Muhammad Sarwar on inner side of his thigh. On the report of the fire shot Mian Ahmad Din and Sabir P.Ws. and other residents of the village were attracted and seeing them the petitioner and his co-accused made good their escape. According to the medico legal report Muhammad Sarwar had received only one injury in an area of 7 cm x 6 cm on front and upper part of left thigh which made an exit injury. Initially the injury was kept under observation and subsequently the Medical Officer declared the said injury to be GHAYR JAIFAH MUTALAHIMAH.
3. It is pleaded on behalf of the petitioner that during investigation, the other two co-accused who have also been alleged specific role by the complainant and the injured P.W. were found to be innocent and that there was no previous enmity or rankle between the parties and that the occurrence in question had taken place all of a sudden and the fact that the petitioner did not allegedly repeat the fire shot is indicative of his intention that he did not want to kill the injured P.W., which make his case one of further inquiry and that the petitioner is behind the bars since 29.9.2003 and the act of the petitioner falls within the purview of Section 337-F(iii) P.P.C. which is primarily punishable with DAMAN and may also be punished with imprisonment which may extend to three years as Tazir and as such the offence does not fall within prohibitory clause.
4. It is not borne out from the contents of the F.I.R. that the petitioner had any previous enmity or motive to attack the complainant party. The occurrence proceeded from cutting of jokes to which the complainant's brother took an offence. The petitioner only fired one shot hitting the victim on front of his thigh and did not repeat the same despite the fact that he was able to do so.
The injury suffered by the victim falls within the purview of Section 337-F(iii) which is primarily punishable with DAMAN and may also be punished with imprisonment extending to three years as Tazir. The sentence of Tazir is thus a discretionary sentence which is to be regulated by Section 337-N(2) PPC which stipulates as under: "Notwithstanding any thin contained in this Chapter in all cases of hurt the Court may having regard to the kind of hurt caused by him in addition to the payment of Arsh award Tazir to an offender who is a previous convict, habitual or hardened, desperate, dangerous criminal."
Thus the sentence of Tazir will be awarded to those offenders who are previous convict, habitual or hardened desperate or dangerous criminal and B in this case the prosecution has not brought any material on the file to show that the petitioner suffers the said attributes. Therefore the case of the petitioner regarding award of sentence of Tazir is a matter of further inquiry. The petitioner is in jail for the last more than nine months. His co-accused to whom specific roles had been alleged have been found to be innocent having not participated in the occurrence. This fact also goes to show that the prosecution version as narrated in the F.I.R. is not the whole truth.
5. In this view of the matter, the petitioner is allowed bail on his furnishing security in the sum of Rs, 50,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court.