1. ' SHAHID ANWAR BAJWA, J.---F.I.R. No,247 of 2010 was recorded at Police_Station, Mirpur Mathelo on 4-12-2010 at 6-00 p.m. For an incident alleged to have taken place on 3-12-2010 at 4-00 p.m.
2. Complainant stated that he and his cousin Ali Ahmed harvested land of Mir Ahmed Khan Mahar and the present applicant was unhappy on this score. On the material day; complainant and his cousin as well as relative Abdul Rahim hired a tractor for harvesting the land and while that was being done, present applicant armed with K.K along with 17 other persons, six of them not identified, came there. Present applicant is alleged to have fired at cousin Ali Ahmed, which hit him on left cheek and exited from the back side of the neck. This attracted other villagers. The accused persons escaped and while escaping, two of the co-accused robbed complainant of mobile and Rs,5,000. Injured was taken in unconscious condition to Hospital at Rahim Yar Khan, after getting first aid treatment at Daharki. Thereafter, F.I.R. Was lodged.
3. ' Learned counsel for the applicant submitted that there is delay of 28 hours in lodging of F.I.R.
4. Learned counsel referred to first medical report, findings of Special Medical Board and submitted that the injury is doubtful. Learned counsel submitted that counter version F.I.R. Was also lodged on 3-12-2010 being F.I.R. No, 245 of 2010, which was recomended to be disposed of in "C" class but Magistrate disagreed and ordered that Challan be filed. He submitted that present applicant is regularly attending Court below after having been granted interim bail vide order dated 14-12-2010.
5. ' Learned counsel for the complainant submitted that as far as counter version F.I.R. Is concerned, after the Magistrate had taken cognizance, Criminal Miscellaneous Application was filed in this Court and stay order was granted. Additional Sessions Judge, in view of the stay order, since in the meantime, Challan had been submitted, .Returned Challan to the Judicial Magistrate. He submitted that Criminal. Miscellaneous Application has been dismissed but such order, it appears, has not been communicated to the Judicial Magistrate so far. He submitted that name of the applicant is mentioned in -the F.I.R. With a specific role alleged and a clear and serious injury having been caused on a vital part of the body. Learned counsel relied upon Liaqat Ali v. The State 2004 PCr.LJ 962.
6. ' Mr. Shyam Lal, learned A.P.-G., read the medical evidence and opposed bail application.
7. ' Exercising his right to reply, Mr. Qurban Ali Malano, learned counsel for the applicant, relied upon Hamza Ali Hamza v. The State 2010 SCM R 1219.
8. ' I have considered submissions made by the learned counsel and have also gone through the record.
9. ' Jn Hamza Ali Hamza's case (supra) it was alleged in the F.I.R. That petitioners had inflicted hatchet and lathi blows on the victim and it was witnessed by the complainant and other witnesses.
10. Supreme Court observed that upon perusal of F.I.Rs,, lodged by the parties against each other, it would appear that a free fight ensued between them in which hatchets and lathies were used.
11. Consequently two persons from the petitioners' side and one person from the complainant's side received injuries. Supreme Court allowed bail. The case is clearly distinguishable.
12. ' Medical evidence is in three stages. As far as injury is concerned, it was stated as under: "Lacerated punctured wound measuring 1.1/2 cm x 1.1/2 cm over left side of face near left eye inverted margins (wound of entrance).
13. ' Lacerated wound measuring 2 cm x 2 cm over occipital region of skull back of left ear (wound of exit).
14. ' X-ray Skull AP/lat view: No Traumatic bony lesion seen in these skiagrams".
15. ' First medical examination gave following opinion: "Sajjah-i-Khafifah 337 A (i), (ii) Shajjah-i- Khafifah 337A (i).
16. ' Discharge from firearm. Opinion of members of Special Medical Board Ghulam Mohammad Mahar Medical College Sukkur. Possibility of manipulated injury cannot be ruled out, because the narrating history by the injured about the weapon in not coinciding with the injury sustained. The shape of both scar not seen to be formed due to firearm".
17. ' Medical Board gave following opinion: "Patient of head injury (as per history bullet) examined clinically wound enters to ear +posterior to ear as well. These are so healed that one cannot comment about originality of bullet or otherwise.
18. However, on CT bone is intact and there is diffuse dense shadow clinically it looks firearm wound with subcutaneous base line and air which do indicate firearm injury".
19. ' And, ultimately, it stated as under: "The members of Super Medical Board are of the unanimous opinion that the possibility of manipulation cannot be ruled out on the following grounds:
(1) The first decision of Super Medical Board of Ghulam Muhammad Mahar College Sukkur.
(2) The X-ray skull/CT Scan report of Dr. Ghulam Qadir Buladi, Associate Prof. Of Radiology, LUM & HS Jamshoro:
(3) On asking the history of the injured he said that assailant and he (injured) both were face to face, entry and exit are not in the same axis, the exit is 1.5 cm above the entry wound indicating that fire was from lower side (acute angle).
(4) No track wound complex was palpated.
20. ' Such presentation of entry, track and exit are impossible with high velocity weapon".
21. ' F.I.R. Is very clear on the point that a K.K fire was made and medical opinion does indicate that it is a firearm injury. Moreover, it is a question of deeper appreciation, which cannot be undertaken at bail stage to accurately and minutely assess the injury and extent of it. Learned counsel for the complainant relied upon Liaqat Ali's case (supra). A Single Judge of Lahore High Court observed as under:- "4. I have heard learned counsel for the parties. In the instant case, petitioner was armed with gun, he fired a shot which hit on the thigh of injured P. W., who is also present in Court. Section 324, P.P.C.
22. Is fully applicable in this case. Once an accused B person presses the trigger, section 324, P.P.C.
23. Comes into existence. As far as delay in conclusion of the trial is concerned, at least on 3/4 dates of hearing, witnesses including the injured P.W. Were present but the learned counsel got adjourned on one pretext or the other. Presently no case for interference is made put, therefore, this petition is dismissed. However, learned trial. Court is directed to conclude the trial in this case within two months on the receipt of order of this Court".
24. ' Same is the situation in the present case. It is alleged, that the trigger was pressed by the applicant and the bullet hit the injured person. Whether the applicant was such a crack shot that he could hit a moving fly in the air or it was only luck, which saved the complainant, is a question, which can only be decided after the evidence is recorded. Such like injury so close to eye, grating the temple and so close to ear cannot be brushed aside by merely classifying it as Shajjah-i- Khafifah because it is not a case of mere injury but a case under section 324, P.P.C. Therefore, as far as this bail application is concerned, there appears to be sufficient material to connect, prima facie, the applicant with the commission of offence alleged in the F.I.R.
25. ' Result of the above discussion is that this bail application is dismissed and the bail, already granted to the applicant vide order dated 14-12-2010, is recalled.
26. Pre-arrest .