' SAJJAD ALI SHAH, J.--- Through this order I intend to decide two applications viz. One filed on behalf of applicant Amjad Hussain alias Boota seeking bail in Crime No,27 of 2006 of Police Station Shaheed Fazul Rahu under sections 324, 337-F(vi), 504, 34, P.P.C. And the other moved by the complainant of the said crime seeking cancellation of bail granted to co-accused Shahzad by IInd Additional Sessions Judge, Badin in the same crime.
2. The facts per F.I.R. Appears to be that the complainant on 15-7-2006 at 1130 hours lodged a report stating therein that his younger brother Ali Hyder and co-accused Shahzad had exchanged harsh words while riding motorcycle. Ali Hyder reported the incident to his brother complainant who promised to speak to the elders of Shahzad. On 14-7-2006 Ali Hyder and his friend Malik Nazir came to the service station for the service of Ali Hyder's bike whereas the complainant was sitting at the shop of Rafiq Arain in front of service station. At about 6-00 p.m. Shahzad and Amjad came on motorcycle and started abusing All Hyder by recalling the incident which had taken place 2/3 days back and thereafter both the accused persons took out pistols from their folds on which the complainant and one Faisal went running at the scene by shouting not to fight. In the meanwhile Shahzad fired from his pistol with intent to kill Ali Hyder which hit him on his back whereas Amjad alias Boota fired from his pistol at Malik Nazir which hit him on his left elbow, thereafter, both the accused upon seeing the complainant coming towards the place of incident ran away while firing in the air. The complainant thereafter brought the injured to Government Hospital Golarchi where Medical Officer referred the injured to Hyderabad.
3. Bail application moved on behalf of applicant/accused Amjad alias Boota was rejected by 'Ind Additional Sessions Judge, Badin, vide his order, dated 17th October, 2006 by concluding as follows:-- "In this case present accused along with co-accused being armed with weapons attacked upon complainant party and he fired Upon P.W./injured Malik Nazir, which hit on his left elbow and co- accused Shahzad straightly fired upon injured Ali Haider on his backside of abdomen as such, the intention as required under section 324, P.P.C. Is clear and the injury attributed to present applicant/accused on non-vital part of the body is no ground for grant of bail to him."
4. However, the same Judge vide his order dated 18-12-2006 after two months of declining bail to co-accused Amjad alias Boota admitted the respondent/accused Shahzad (whose bail is sought to be cancelled) on bail by observing that:-- "the accused is behind the bars since last five months and he is no more required by police for investigation, as the case has been challaned and only one injury is allegedly attributed to him."
5. Mr. Allah Bachayo Soomro, learned counsel for the applicant/ accused has contended that 18 hours delay in lodging the F.I.R. Spells consultation and the explanation offered in the F.I.R. Is mere an eyewash for the reason that there were P.Ws. As well as injured Nazeer, who sustained fire-arm injury at his elbow, who could have lodged F.I.R. It was further contended that medical certificates would reflect that both the injured have received fire-arm injuries from the backside, which negate the entire version of the F.I.R. It was next contended that per F.I.R. Only one shot was fired at the injured by the applicant/accused, whereas the injured were at the mercy of the accused persons and more shots could have been fired at them if the accused had any intention to kill. Learned counsel further contended that no witness from the place of occurrence was examined. It was lastly contended that the ingredients of section 324, P.P.C. Are not attracted and even otherwise the intention of the parties can only be assessed after the evidence is adduced. Presently the applicant/accused is charged with an offence falling under section 337-F(vi), P.P.C. And the maximum punishment for the offence as provided is seven years and, therefore, the applicant/accused is entitled to the concession of bail. In support of his contention that in cases where the accused despite opportunity did not repeat fire the question of intention to kill is to be determined after regular trial, reliance was placed on the case of Saleem Khan v. The State 1999 PCr.LJ 140, Akhtar Hussain v. The State 2000 PCr.LJ 315 and Muhammad Nadeem v. The State 2006 PCr.LJ 1515.
6. On the other hand, Syed Madad Ali Shah, learned counsel for the complainant has contended that the applicant/accused has been named in the F.I.R. And specific role and specific injury has been attributed to him. As to delay, it was contended that the delay has been properly explained in the F.I.R. As the injured were taken to hospital and thereafter the F.I.R. Was lodged. As to intention, learned counsel has contended that no sooner an accused person triggers a fire-arm weapon, the intention is obvious and in the instant case the applicant was attributed a motive. It was next contended that six empties of .30 bore were collected from the place of incident and after arrest of both accused persons on 21-6-2006 T.T. Pistols of .30 bore with 3 and 4 live bullets were recovered from the possession of accused Shahzad and Amjad Ali alias Boota respectively. It was further submitted that there are four eyewitnesses of the incident who have fully supported the case of prosecution. It was lastly contended that once the Additional Sessions Judge while rejecting the bail plea of applicant/accused Amjad alias Boota had come to the conclusion that the accused had an intention to kill the injured persons, the grant of bail to respondent/accused Shahzad by taking a contrary view speaks volumes. In support of his contention that in cases where the delay has been properly explained in the F.I.R. Bail cannot be allowed on the ground of delay, reliance has been placed on the case of Waqas Ahmed v. The State 2005 SCM R 1496; Abbas and another v.
State 2003 PCr.LJ 391 and to fortify the contention that in cases where the accused is named in the F.I.R. With specific role, the accused is not entitled to the concession of bail, the case of Dildar Baig v. The State 1998 SCM R 358 has been cited. Mr. Shah in support of his contention, that in fire-arm injury case every part of the body is vital and once the accused presses the trigger, the intention is obvious, has placed reliance on the case of Saghir Ahmed v. Zulfiqar Ahmed 2005 PCr.LJ 1284, Liaquat Ali v. The State 2004 PCr.LJ 962, Muhammad Nawaz v. The State 2004 SCM R 772 and Abbas and another v. The State 2003 PCr.LJ 391.
7. Mr. Noorul Haque Qureshi, learned counsel for the respondent/ accused has contended that the complainant in order to aggravate the nature of injury has wrongly translated the F.I.R. And has mentioned the injury at the back of chest, whereas in fact it was allegedly caused at the back of the belly. It was further contended that the very nature of the fire reflects that there was no intention to kill, therefore, the ingredients of section 324, P.P.C. Are not attracted or at least requires evidence. It was next contended that the delay has not been properly explained even the injured Nazeer, who had fire-arm injury at elbow was available in Town as such, the delay spells consultation. It was lastly contended that neither any witness from the place of incident was examined, nor the injuries sustained corroborate with the F.I.R., as 'both the injured sustained injuries at their backside. In support of his contention learned counsel has placed reliance on the order of the apex Court in the case of Muzafar Iqbal v. Muhammad Imran Aijaz 2004 SCM R 231, Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCM R 1539 and Jan Muhammad Haji Noor Jamal and another 1998 SCM R 500 by arguing that the considerations for cancellation of the bail are different than the grant of the bail.
8. Mr. Mashooque Ali Samo, learned Assistant Advocate-General appearing on behalf of the State has vehemently opposed the grant of bail to the applicants/accused on the ground that not only the names with specific role have been mentioned but the motive is also evident, the recoveries have been effected from the accused persons, therefore, the applicants/accused are not entitled to the concession of bail, likewise, it was contended that once the Additional Sessions Judge had come to the conclusion while rejecting the bail plea of applicant/accused Amjad that the intention to kill was clear, the grant of bail to respondent/accused Shahzad was not justified and therefore, is liable to be cancelled.
9. I have heard the contentions of the counsel for the respective parties and have gone through the record placed before me and the case-law cited at Bar.
10. Taking up the first contention of Mr. Allah Bachayo Soomro that the delay spells consultation and F.I.R. Could have been registered by the witness or injured Nazeer who sustained injury on the elbow. A perusal of the F.I.R. Reflects that both the injured were taken to Golarchi Hospital and from there were referred to Hyderabad Hospital i.e. Approximately 60 miles away from Badin, which definitely would have consumed time and expecting from complainant to leave his injured brother in the hospital and come back to Badin to register the F.I.R. Would be too inhumanly specially when night was intervening between the time of incident and the time of report. Likewise it would amount to expecting too much from the witnesses of an incident to lodge the F.I.R. In my view, the delay has been properly explained and no benefit in the circumstances for the purpose of granting bail can be extended to the applicants/accused.
11. As to the second contention of Mr. Soomro that since both the injured suffered injuries on their backside, which negates the entire version of the F.I.R., I have gone through the contents of the F.I.R.
And was not able to find as to how such injuries would negate the version given in the F.I.R. Per F.I.R.
When the accused persons had taken out pistols from their folds, there was sufficient time before they fired shots, as during this period the complainant ran to the scene in order to stop the accused from fighting, which definitely would have given sufficient time to the injured to turn in order to save themselves, even otherwise the F.I.R. Does not give the direction of injured at the time they were shot, therefore, the contention is without substance.
12. Taking up the next contention of Mr. Soomro that the accused persons despite opportunity 'did not repeat fire, which reflects lack of intention and entitles them to the concession of bail, this argument hardly appeals to the mind for the reason that when an accused person chooses to use a fire-arm weapon against his enemy, the intention is very obvious and further in ordinary course a single shot is sufficient to cause the death of a person, therefore, non-repeating of fire at the most, can be termed that the accused person had no intention to brutally cause the murder, but it cannot be construed that they had no intention, specially when the injury is caused on the upper part of the body. As to non-repeating the fires, with all due respect I am not able to persuade myself to agree with the observation of the learned single Judge in the case of Saleem Khan (supra) that non-repeating of fires amounts to lack of intention even otherwise in the said case motive was missing and therefore, the dicta laid down in the said case is not attracted.
13. As to the contention that the injuries were caused at non-vital parts of the body, which reflects lack of intention, the argument is without any substance, as the accused persons were not sharpshooter, they tried to shoot above the nave i.e. Upper part of the body and it was sheer luck, which favoured the injured. Injured Nazeer, who sustained bullet injury on his left elbow. Had it been six inches on the right side, it could have caused his death. Likewise the injury caused to injured in the case of Shahzad would have been fatal if would have been six inches above, therefore, it cannot be said that they had no intention to kill. They were fully aware that the injury from the fire- arm weapon could cause the death of injured, despite such weapons were choosen, this sufficiently reflects their intention.
14. It is equally important that the F.I.R. Specifies the motive, assigns specific role, empties of .30 bore were found at the place of incident and the recovery of .30 bore TT pistols has been effected from both accused, in addition four prosecution witnesses including two injured have fully supported the case of the prosecution.
15. In the circumstances, there is sufficient material available on record to connect the present applicant with the commission of the crime. The intention as dilated above, was very obvious, therefore, the ingredients of section 324, P.P.C. Are fully attracted in the case in band. Even otherwise section 337-F(vi), P.P.C. Is non-bailable and it is by now well-settled principle that in non- bailable case, bail cannot be claimed as a matter of right and can be declined even in respect of offences which do not fall under prohibitory clause of section 497, Cr.P.C.
16. In view of what has been discussed above, I am not inclined to extend the concession of bail to the applicant/accused and consequently, the bail application of accused/applicant Amjad alias Boota is hereby dismissed.
17. Since I have already expressed my views that the applicants/ accused hereinabove, were not entitled to the concession of bail and the respondent/accused namely Shahzad was granted bail in questionable circumstances by the Additional Sessions Judge, Badin specially when he had come to the conclusion while declining bail to co-accused Amjad alias Boota that intention of the applicants/accused as required under section 324, P.P.C. Is clear and the attribution of the injury on non-vital parts of body was no ground for the grant of bail. After having taken such view grant of bail to co-accused/respondent Shahzad was not only against the judicial norms but also appears to be mala fide. I am fully conscious of the fact that consideration for cancellation of bail are surely different than for its grant and normally the exercise of such discretion is not to be lightly interfered, however, since I have come to the conclusion that the bail granted to the respondent/accused was totally against the settled norms of justice and exceptional circumstances warranting interference exist, therefore, the principle laid down in the judgments referred by the learned counsel for the respondent/accused are not attracted. In the circumstances, bail granted to co- accused Shahzad is hereby cancelled.
' Copy of this order along with copies of orders dated 4-10-2006 (whereby bail plea of applicant/accused Amjad was declined) and dated 18-12-2006 (bail granted to respondent/accused Shahzad) passed by Mr. Manthar Ali Jatoi, Additional Sessions Judge, Badin be sent to M.I.T. For placing the same before Honourable Chief Justice for initiating necessary action against him.