JUDGMENT MUHAMMAD HASHIM KHAN KAKAR, J.---Applicant was refused bail by the Court of.
Sessions Judge, Sibi Division Sibi vide order dated 6th July, 2011 in case - Crime No.24 of 2011, under section 324 read with section 34 of the P.P.C., registered at Levies Station, Bala Nari, against which instant application has been directed:
2. The facts, forming the background of this bail application, precisely, are that complainant Dost Muhammad in his report alleged that on the fateful day of the incident i.e. 21st April, 2011, he, along with Shah Nawaz, started proceeding towards their village on a motorcycle from Sibi. At about 6-30 p.m., when they reached near village Chandar, four armed persons forcibly intercepted them on gunpoint and they were identified as Abdul Latif, Zahoor Ahmed, Muhammad Anwar and Mukhtar Ahmed (applicant): It was further alleged that the accused persons made tiring upon him with Kalashnikovs, in result whereof, he received one bullet injury on his leg. Consequently, the instant F.I.R. Was lodged.
3. I have given my anxious consideration to the respective contentions of learned counsel for the applicant and learned P.G., and have also perused the available record minutely, with their assistance. I am in agreement with the learned rosecutor-General that deeper appreciation of the evidence at bail stage is not warranted under the law and only bird's eye view is to be made, but it is equally true that bail application cannot be decided in vacuum. A tentative perusal of the record shows that, prima facie, there is no sufficient material available on the record to believe that the applicant has committed an offence, which falls under the prohibitory clause of section 497 of the Cr.P. C.
4. Section 324 of the Code of Criminal Procedure 1898 .Deals with an attempt to commit qatl-e- and. An attempt as an indictable crime means an intentional B act with a view to attain a certain end but which is not achieved because of circumstance independent of the will of the offender who makes the attempt. In the instant case, the intention of the applicant to kill the complainant is not available, particularly when, after sustaining a bullet injury, the complainant fell down and was entirely at the mercy of accused persons, but the accused persons, despite having deadly weapons i.e. Kalashnikovs, ceased to repeat their act. Applicability of section 324 of the P.P.C. Has to be adjudged in the background of number of the accused persons, the weapons carried by them and the opportunity available to them to complete the intended offence. Receipt of solitary firearm injury on the leg by the complainant has indicated that accused had no intention to kill him; otherwise they would have not shot on his leg.
5.. The firing has been attributed to three accused persons, while the complainant has sustained only one bullet injury on his leg; as such; prima facie, the applicability of section 324 of the P.P.C. Is yet to be determined during course of the trial and,. At best, the case of the applicant seems to be covered by, the provisions of section 337-ADF of the P.P.C., which are, otherwise, either do not fall within the prohibitory clause of section 497 of the Cr.P.C, or bailable in nature and some of the acts/offences even punishable with fine only. Admittedly, when an offence is also punishable with fine only, accused shall be entitled to bail as a matter of right, because if, at the trial, he -is only sentenced with a fine, the period, which he served as under trial prisoner, due to refusal of bail, shall amount to a case of double jeopardy, which is prohibited under section 26 of the General Clauses Act, 1897, section 403 of the Code of Criminal Procedure, 1898 and Article 13 of the Constitution of Islamic. Republic of Pakistan; 1973. In the given circumstances, the case of applicant falls within the ambit of further inquiry.
6: There is another important aspect of the-case, which has been over sighted by the trial court, while refusing bail to the applicant. It appears, from the contents of F.I.R. That complainant was accompanied by one Shah Nawaz at the time of alleged occurrence, but-it is very strange to note that neither his statement under section 161 of the Cr.P-.C. Was recorded, nor he was cited as -a witness in the calendar of witnesses, which shows that the prosecution has withheld a very important piece of evidence, which creates doubt to the prosecution case. It is. a settled principle of law that the doubt can be taken into consideration even at bail stage. In this regard, I may rely upon the case of Qurban Hussain and another v. The State reported in PLD 1994 Lahore 385(b), wherein it has been held- as under:-- offence---Bail to a Person accused of a non-bailable offence is to be allowed as a right under S.497(2), Cr.P.C, if no reasonable grounds exist for believing that he has committed a non-bailable offence or there are sufficient grounds for further inquiry into his guilt---Bail in such cases is not withheld only in the discretion or for the reason that maximum sentence provided for the offence - is death or imprisonment for life.
Reliance is also placed to a judgement-reported in 1994 PCr.LJ 1756..
7. For what has been discussed and stated hereinabove, I hereby grant Pose arrest bail to the applicant,' subject to furnishing surety bond in the sum of Rs.200,000 (rupees two hundred thousand only) and PR bond of the like amount to the satisfaction of the trial court. The observations, made hereinabove, are tentative in nature and shall not affect the case of either party on merits.