' ABDUL RASOOL MEMON, J.---Through this application, the applicant Sanwan seeks post arrest bail in Crime No, 67 of 2011 of Police Station 'Madeji, under sections 324, 148, 149, 337-H (2) P.P.C. From this Court, as his similar application was rejected by the learned trial Court, vide impugned order dated 20-12-2011.
2. The allegation against the present applicant is that on 9-11-2011, he along with other co-accused went to the Otaq of complainant party, and he made straight fire from kalashnikov upon P.W.
Zubair Ahmed, which hit on his shoulder. The motive behind the incident, as setout in the F.I.R. Is murderous enmity between the parties over landed property.
3. Learned counsel for the applicant has argued that previous enmity is admitted even in the F.I.R., Learned counsel further contended that during course of investigation, police recommended the case for disposal under "B" class, but the learned Magistrate did not agree with the opinion of police and ordered for submission of challan. Learned counsel further added that the injured was on the mercy of the accused, but the did not repeat the fire, therefore, application of section 324,.
P.P.C. Is matter of further enquiry. He further contended that injury sustained by injured has been declared as Jurh Ghayr Jaifah Hashmihah and is punishable only or five years and does not fall within prohibitory clause of section 497, Cr.P.C. He further contended that injury on the person of injured is not on his vital part. Learned counsel further contended that injured was examined by the medical officer, who is of the opinion that probable time of injury was 40 hours, which shows that injured received such injury two days prior to the alleged incident and it creates shadow of doubt, which can be extended in favour of the accused even at bail stage. In support of his contentions learned counsel relied on the cases of Jan Muhammad v. Haji Noor Jamal(1998 SCM R 500), and Saleem Khan v. The State (1999 PCr.LJ 140).
4. On the other hand learned State Counsel, assisted by the advocate for the complainant opposed grant of bail on the ground that name of applicant appears in the F.I.R. And he has been assigned active role of causing injury to P.W. Zubair Ahmed.
5. Heard the learned counsel for the parties and perused the record.
6. There is no doubt that the name of applicant appears in the F.I.R. And specific role of causing injury to injured Zubair Ahmed has been assigned to him, but bare perusal of the F.I.R. Shows that all the accused persons were armed with weapons including the applicant, but none of the accused including present applicant repeated fire, though the complainant and his witnesses were completely at their mercy. Prima facie. There appears no intention on the part of the applicant that he intended to kill P.W. Zubair Ahmed. The injury on the person of injured is on his non-vital part of body, which also prima facie shows lack of intention to cause Qatl-e-Amd, therefore, question of applicability of section 324, P.P.C. Will be determined at the trial after examining the A prosecution witnesses. The medical officer has decaled the injury as Jurh Ghayr Jaifah Hashmihah which falls under section 337-F(v), P.P.C., and carries punishment upto five years, therefore, it does not come under prohibitory clause of section 497, Cr.P.C.
7. In the case of Tariq Bashir v. The State (PLD 1995 SC 34), it was held by the Hon'ble Supreme Court that in cases'which does not fall within prohibitory clause of section 497, Cr.P.C. Grant of bail is. Rule and refusal is an exception. While in the case of Umar alias Qaisar v. The State (NLR 1996 Criminal 541), the Hon'ble Supreme Court granted bail in the case under section 337-F(v), P.P.C. On the ground that the offence does . Not fall under the prohibitory clause of section 497, Cr . P.0 .
8. Considering all the aspects of the case and the fact that injuries on the person of injured Zubair Ahmed were not on his vital part of body, and the alleged offence falls under section 337-F(v), P.P.C., which does not come within prohibitory clause of section 497, Cr.P.C. And the applicability of section 324, P.P.C. Will be determined at the trial; am of the opinion that the case of the applicant requires further enquiry under subsection (2) of section 497, Cr.P.C. Accordingly, this bail application stands allowed and the applicant is directed to be released on bail on his furnishing solvent surety in the sum of Rs,200,000 (Two hundred thousands), and P.R. Bond in the like amount to the satisfaction of the trial Court. The observations made hereinabove are tentative in nature and will not touch the merits of the case at all.