1. This is an application for cancellation of bail granted to respondent No. 1 Mohammad Zakir Khan by the VIIth Additional Sessions Judge, Karachi. 1'he respondent is facing trial for an offence under sec--tion 307, P.P.C. For having fired from his licensed revolver, three shots at the applicant and two shots at his younger brother and caused them bullet injuries.
2. The prosecution case briefly, is that Mohammad Zakir has got a shop in AI-'Yousaf Plaza, Federal 'B'
3. Area, Karachi, where he sells cold drinks. Later on, the applicant and .His brothers also opened a shop, next to the shop of Muhammad Zakir and started doing the same business of selling cold drinks. It is alleged that Mohammad Zakir did not approve of the applicant and his brothers, doing the same business next to his shop, which was likely to affect his business adversely. On the day of occurrence (6th November 1978) at about 6-30 p. m. The younger brother of the applicant was sweeping in front of the shop and some dirt had gone towards the shop of Mohammad Zakir, over which, his son bad objected. There was exchange of abuses between the two boys. When the son of Mohammad Zakir filthily abused the younger brother, the applicant, took an exception and asked him not to do so. In the mean--time, it is alleged that the respondent came out of his shop armed with his revolver and challenged the applicant that he would finish them. He fired, from the revolver, three shots at the applicant. Two shots hit the applicant on the chest above the nipple.
4. When he tried to turn and save himself, the respondent fired the third shot, which hit him at the back, near the spinal cord. When, younger brother of the applicant, Javaid Akram, tried to intervene, he was also fired upon twice, by the respon--dent, and the shots hit him on the left knee joint and middle of the 10th and 11th ribs, in the mid axillary line, on the right side. In the mean-- time, P. Ws. Shahid Raza, Saleem and Ashraf intervened and saved the applicant and his brother, otherwise, as is alleged, the respondent would have killed them.
5. The applicant and his brother were removed to -the hospital and the doctor on duty had informed the Police. The statement of the applicant was recorded in the Hospital, which was incorporated, as the F.I.R. And the Police registered the case under section 307, P.1'.C. The three bullets are still in the body of the applicant and have not been extracted. Mohammad Zakir was arrested on the same night. During investigation, the licensed revolver containing one live cartridge was recovered from Mohammad Zakir by the police. Four empties were also secured from the place of occurrence.
6. After completing the investigation the case was challaned in the Court. No evidence has yet been recorded.
7. Mohammad Zakir applied for bail, which was granted by the learned VIIth Additional Sessions Judge, Karachi by the order dated 2 January 1979, on the ground that there was exchange of hot words between the parties, which resulted in a sudden fight and also that there was no motive for committing the crime. In the order, it was farther observed that further statement of the applicant/complainant was different from the F. I. R. The A.P.P. Also bad raised no objection and the application was granted.
8. In his arguments Mr. Ali Murtaza Hussain, the learned Advocate for the Applicant, has pointed out that the Respondent No. 1 had fired repeatedly three shots at the applicant and twice at his younger brother Javaid Akram and injured both of them. This fact clearly indicated the intention to kill the applicant and his brother. He has further submitted that from the place of occurrence, four empties were secured by the police. The revolver and the empties have been sent to the expert for opinion. He has also pointed out, that further statement of the applicant makes mention of the motive, being enmity over business rivalry between the parties, but there is no difference between the further statement and the F. I. R. Lodged by the applicant.
9. On the other hand Mr. Qamar Mohammad Khan appearing on behalf of Mohammad Zakir Khan has submitted that this is an applica--tion filed by a private party and not by the State. He has contended that cancellation of bail, cannot be made available to private parties, to satisfy their grudge against their opponents, as a means of wreaking their vengeance. He has further contended that the prosecution has not moved for cancellation of the bail. He has also contended that in the F. f. R. No motive, disclosing enmity between the parties, was disclosed. It is argued that after exchange of abuses, a sudden fight took place and there was no intention to murder the applicant, as the firing was not pre-planned. He has placed reliance on 1977 P Cr. L J 277 and 1976 Cr. L J 324.
10. In this case, the State should have ordinarily moved the application for cancellation, but since, the A. P. P. Had not opposed the bail, it was not done so. When private patty feels aggrieved, I do not think, in a proper, case, it should be prevented, from recourse allowed to it by law.
11. The first case cited above was a revision application. There was admittedly a litigation between the parties. The applicant was a police constable, who was alleged to have threatened the injured to death and consequently bad assaulted him, with a knife and caused him injuries on the ribs. The applicant in that case, had also lodged a counter report, regarding the same incident, which was prior in time, than the report lodged by the injured. Since there were two counter cases, the trial Court had taken the view that the question, as to who was the aggressor was yet to be determined and the respondent was allowed bail, which was sub--sequently cancelled, on the ground of misusing the liberty, by suborning the witnesses. The said order of cancellation of bail was set aside by the High Court. The facts of that case, were altogether different and cannot be made applicable to the instant case.
12. In the second case, cited above, the application was for cancellation of bail, where the accused persons were alleged to have attacked the complainant and had tired upon him, Two pellets hadnd hit him on the left thigh and right forearm. The person, who had fired, was allowed bail by the lower Court, against which application for cancellation of bail was moved in the High Court. The injured had received simple injuries on non vital parts of the body and only one shot was fired. From this the learned trial judge bad formed the view that the' accused bad no intention to kill and the offence did not fall under section 307, P.P.C. The facts of that case also are distinguishable.
13. I have heard the learned counsel appearing for the applicant, Res--pondent No. 1, as well as, the State at great length. I have also perused the F. I. R. And further statement of the applicant/injured, who is also present in Court. There is tangible and substantial evidence against the respondent No.
1. The motive is disclosed in the further statement of the applicant and question of sudden fight is premature to be considered at this stage. He had received two bullets on the chest and the third at the back. It was a miraculous escape. The bullets are still inside the body and can be seen with a naked eye. From the medical evidence it is shown that injured Javaid, had also received two bullet injuries. The respondent seems to have repeatedly fired shots upon the two brothers, which, prima facie gives an indication at this stage, without any evidence e having recorded, of the intention of the respondent. The order of the learned VIIth Additional Sessions Judge that further' statement of they applicant was different from the F. I. R. Is not borne out by the record. Accordingly the order, granting bail to Mohammad Zakir Khan being, erroneous, on the f ace of it, calls for interference.
14. This application for: cancellation of bail is accordingly allowed and the order granting bail to him is set aside.
15. The bail allowed to Mohammad Zakir/respondent No. 1 stands cancelled.