' SARDAR MUHAMMAD SADIQ KHAN, J.---This criminal appeal has been filed against the order of Shariat Court dated 20-10-2010 whereby revision petition filed by accused-respondent, has been accepted and he has been released on bail.
2. Brief facts, necessary for disposal, of appeal are that the complainant Pinnu Khan son of Muhammad Faqir, Caste Jat resident of Seharthala, Tehsil Dudyal presented an application at Police Station Dudyal on 12-5-2010, alleging therein that he is inhabitant of village Seharthala and his son Irfan Mehmood, informed him that at about 6-30 p.m., he, along with his elder brother Zafar Mehmood, was present in their land, meanwhile Ishtiaq son of Muhammad Siddique and Muhammad Siddique son of Manga Khan, came there and asked him that why he is demanding the money. Ishtiaq was holding a rifle like Kalashnikov in his hands when, Muhammad Siddique asked him to fire at Zafar Mehmood. On listening this, Zafar Mehmood started running away from the spot. The accused Ishtiaq, fired at Zafar Mehmood. The fire hit at his right leg and he fell down.
Both the accused, Ishtiaq and Muhammad Siddique ran away in a car from the place of occurrence. The occurrence is stated to have been witnessed by Irfan Mehmood and one, Asif. A case for the offences under sections 324, 33 and 34, A.P.C. Was registered at Police Station Dudyal on the complaint of Pinnu Khan.
3. After necessary investigation. The accused-respondent was arrested by the police. The motive behind the occurrence as stated is that Zafar Mehmood, appellant No,2 herein sold his car against the price of Rs,10,00,000 to Muhammad Siddique, Muhammad Siddique paid Rs,200,000 in advance and promised to pay the remaining amount after a year's period. One year's period was expired in the month of April, 2010 when Zafar Mehmood started demanding for the remaining amount.
4. After being arrested, the accused-respondent applied for grant of bail before the trial Court which was refused. He filed another application for grant of bail before the Additional District Criminal Court Dudyal which was also rejected. Against the order of Additional District Criminal Court Dudyal, the accused-respondent filed a revision petition in the Shariat Court which was accepted and the accused-respondent was enlarged on bail vide order dated 20-10-2010. The complainant challenged the aforesaid order of the Shariat Court through this appeal.
5. Mr. Muhammad Reaz Alam Advocate, the learned counsel for the appellant, after stating brief facts of the case, argued that the learned Shariat Court has failed to consider that the occurrence took place in the broad day-light. He further submitted that the accused-respondent is nominated in the F.I.R. And a specific role of causing fire-arm injury to Zafar Mehmood appellant No,2, is attributed to him. He further contended that at the bail stage, only a bird's eye view of the prosecution evidence and material on record is to be taken. Deep scrutiny and appreciation of evidence is always avoided but the Shariat Court has not taken into consideration this principle while recording the impugned order. He further submitted that only the F.I.R., statement of accused under section 161, Cr.P.C, medical report and other corroboratory evidence, if any, brought on record is to be considered tentatively but it was not done in the instant case by the Shariat Court.
The learned counsel vehemently argued that the Shariat Court has committed an, illegality while accepting the revision petition filed by the accused-respondent, therefore, this appeal may be accepted and by setting aside the order of Shariat Court dated 20-10-2010, the bail allowed to the accused-respondent may be cancelled. In support of his contentions, he has relied upon the cases reported as 2006 PCr.LJ 462, 418 and 423, 2000 PCr.LJ 105 and 1993 SCR 65.
6. While controverting the arguments of the learned counsel for the complainant-appellants, Ch. Muhammad Anwar Advocate, the learned counsel for accused-respondent, argued that an old enmity was prevailing between the parties due to which an unpleasantness took place which resulted into the incident. He further stated that the accused-respondent is falsely implicated in the case by the complainant-party. The learned counsel further contended that the occurrence was not pre-planned. He forcefully contended that if at all the occurrence has taken place, it happened suddenly. The learned counsel further submitted that a simple injury was caused to Zafar Mehmood appellant No,2 at his right leg thus, the allegation of attempt to murder was doubtful. He further stated that the statement of the complainant and one of the eye-witnesses has been recorded by the trial Court and prima facie, the allegation of attempt to the offence of murder is not proved against the accused-respondent. Furthermore, the accused respondent is no more required by the police for further investigation as the challan of the case has already been submitted in the trial Court. Therefore, the Shariat Court, while accepting the revision petition, has rightly admitted the bail to the accused-respondent vide impugned order dated 20-10-2010 which does not suffer from any illegality, hence, the, same may be upheld and the appeal filed by the complainant may be dismissed. He placed reliance upon the cases reported as 2007 PCr.LJ 1667 and 2008 PCr.LJ 1139.
7. Mr. Muzaffar Ali Zafar, the learned Additional Advocate-General, who is representing the State, has fully owned and supported the arguments advanced by the learned counsel for the appellants.
8. We have heard the learned counsel for the parties and perused the contents of F.I.R., statement of the complainant, one of the eye witnesses and the other record made available. It may be observed that the accused-respondent is alleged for causing fire-arm injury on the right leg of Zafar Mehmood, appellant No,2, herein. The nature of injury caused to Zafar Mehmood, as per medical report, is simple which falls under section 337-F(iv), of the Azad Penal Code, the maximum punishment for which is provided as 5' years' imprisonment. For proper appreciation, section 337- F(iv), A.P.C., is reproduced below:-- "337-F Punishment of "chair Jaifa":- Where by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes:-
(i) .
(ii) .
(iii) ..
(iv) mudihah to any person, shall be liable to daman and may also be punished with imprisonment of either description for a term which may extend to five years as ta'zir"
9. It may be mentioned here that in cases where the punishment provided is less than 10 years, the alleged offences do not fall within the prohibitory clause of section 497(1), Cr.P.C. And in that case, the general principle of criminal jurisprudence is bail not jail. In the instant case, the accused- respondent is alleged to have caused a simple injury at the leg of Zafar Mehmood which is a non- vital part of the body and punishment provided for the offence is less than 10 years, therefore, the argument of learned counsel for the appellant that the Sharait Court has committed an illegality while admitting bail to the accused-respondent, A has no substance, therefore, the same stands repelled.
10. A cursory perusal of medical report reveals that a single fire shot hit at the right leg of Zafar Mehmood, complainant and the accused-respondent has not repeated the act of firing. It further transpires that the fire hit at non-vital part of body of the complainant. The challan of the case has already been submitted by the investigating agency before the trial Court and statement of complainant and one of the eye-witnesses has also been recorded. The accused-respondent is no more required by the police for further investigation and at this stage, sending the accused behind the bars will serve no purpose.
11. Now we advert to the case-law referred to and relied upon by learned counsel for the complainant-appellants.
' In a case titled Mian Touqeer Zafar v. The State, reported as 2006 PCr.LJ 418, it has been observed that under section 498 of Cr.P.C., when the accused, who is prima facie connected with the commission of offence which falls within the prohibitory clause of section 497, Cr.P.C., was not entitled to relief sought.
' In the other case titled Muhammad Shafique v. The State, reported as 2006 PCr.LJ, 423, it has been held that pre-arrest bail cannot be granted to an accused in the circumstances when the accused is involved in a case which covers the section 497(1) of Cr.P.C.
' In another case titled Khurshid Ali and 9 others v. The State, reported as 2006 PCr.LJ 462, it is observed that in case of pre-arrest bail, if the accused, who had failed to point out any material or mala fide with the complainant and the police falsely involved him in the case of recovery of crime weapon and property is yet to be made. The said accused in the circumstances, are not entitled to concession of bail.
' In the other case titled Tubassam Ahmed Qureshi v. The State, reported as 2000 PCr.LJ 105, it has been held that in the cases not falling within the prohibitory clause of section 497, Cr.P.C., bail cannot be refused. In the case in hand, this case-law does not support the contention of the complainant rather it favours the accused-respondent No,1.
' In the other case titled Baggoo v. The State and others, reported as 1993 SCR 65, it has been held by this Court that the accused is involved in a heinous case, under section 302, A.P.C. Read with section 4/5 of the Islamic Penal Laws Act, concession, of bail cannot be granted without recording the evidence of the eye-witnesses. The instant case is not of a heinous nature rather it is a case of simple injury caused on non-vital part of the body of Zafar Mehmood, complainant, which is also not covered by prohibitory clause of section 497(1), Cr.P.C.
' From the perusal of above cited case-law, it transpires that in the referred authorities, either the cases fall within the prohibitory clause of section 497(1), Cr.P.C. Or the punishment provided for such offence was penalty of death or more than 10 years imprisonment and the bail was refused.
Whereas in the case in hand, the accused-respondent is alleged to have caused a simple injury at the right leg of the victim and punishment provided for the offence is 5 years' imprisonment which does not fall within the prohibitory clause of section 497(1), Cr.P.C. We have no cavil with the proposition of law enunciated by the Courts in the referred authorities but it may be stated here that each criminal case is decided according to its own peculiar facts and circumstances.
12. So far the case-law referred to and relied upon by the learned counsel for the accused- respondent is concerned, he has rightly placed reliance upon the cases reported as 2007 PCr.LJ 1667 and 2008 PCr.LJ 1139.
' In the case titled Bahadur Said v. The State and another, reported as 2007 PCr.LJ 1667, it has been observed that the injury attributed to the petitioner is on non-vital part of the body of the complainant. Moreover, no fracture or dislocation of the bone is caused to the complainant, therefore, it is yet to be seen whether the petitioner intended to kill the victim. It also prima facie shows lack of his intention to cause "Qatl-e-amd". Under the circumstances of the case and facts as Mentioned in the F.I.R, the question of applicability of section 324, A.P.C. Is still to be determined at trial after examination of complainant and Prosecution witnesses.
' In the other case titled Saeed and another v. The State, reported as 2008 PCr.LJ 1139, it has been held by this Court that both the petitioners have been attributed injuries on non-vital parts of the bodies i,e,, feet of the injured prosecution witnesses: the nature of injuries provides punishment of five years Which does not fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. As far as the application of section 324, A.P.C. Is concerned, prima facie, that requires further inquiry keeping in view the seat of injuries.
13. After going through the case-law relied upon by the learned counsel for the parties, we have come to the conclusion that the accused-respondent is alleged for causing simple injury on non- vital part of the body of complainant-appellant No,2 which does not fall within the prohibitory 'clause of section 497(1), Cr.P.C. In view of medical report and statement of complainant and one of the eye-witnesses, the case of accused-respondent falls within the scope of further probe and inquiry. Our this view finds support from the case ' titled Muhammad Khurshid v. The State, reported as 1996 PCr.LJ 544 wherein it has been observed that:-- ".... In this case, the injury was found on non-vital part of the victim. It also cannot be glossed over that the petitioner did not repeat the alleged overt act although the victim was at his mercy at the relevant time. Further the aforesaid injury was not likely to result in death in usual course of nature nor was so imminently dangerous was as to be likely to cause death. Reliance can be placed on Ch. Muhammad Anwar Sama and others v. The State, 1976 SCMR 168. The observation made by the learned Additional Sessions Judge that "actually the petitioner fired straight at the victim and that it was his sheer good luck that it injured him on his ankle and is alive today" was based on mere conjectures. Since the matter needed further inquiry, the order passed by the learned Magistrate was neither capricious nor whimsical."
' In another case titled All Gull State, reported as 1994 PCr.LJ 1762, the same view has been taken which is as under:-- ".... There can be no denial of the fact that the applicant had no intention to kill Din Muhammad. As already mentioned, the injury is by means of one single pellet whereas a cartridge contains a number of pellets and, therefore, it could not be the result of a direct hit. If the intention of the applicant was to kill, there was nothing to prevent him from doing so. In the circumstances I am of the view that the case of applicant requires further inquiry within the meaning of section 497(2) of Cr.P.C."
14. It may be stated here that the Challan has already been submitted by the police before the trial Court. Statement of complainant and one of the eye-witnesses has also been recorded by, the trial Court. The accused-respondent No,1 is not required by police for further. Investigation, therefore, the learned Shariat Court has not committed any illegality while admitting bail to the accused- respondent. Our this views finds support from the case titled Muhammad Miskeen v. Muhammad Ayub, reported as 1992 SCR 379, wherein this Court held as under:-- "...The accused cannot be handed over to the police when the challan has been submitted before the trial Court and the accused is enlarged on bail by the Shariat Court."
15. It may be observed here that this Court, normally does not interfere with the discretion exercised by the Shariat Court in bail matters, unless the same is shown to be perverse, capricious or against law. The impugned judgment of Shariat Court is quite in line with the principles governing the bail matters, therefore, need no interference by this Court.
16. The upshot of the above discussion is that the order of the Shariat Court dated 20-10-2010 is upheld and the appeal filed by complainant-appellants stands dismissed.
' Our these observations are tentative and the trial Court is free to proceed under law, without being influenced or drawing any inference from the order of this Court.