1. I propose to dispose of Criminal Bail Application bearing Nos. 325, 594 and 612/82 by this single order. In Criminal Bail Application No. 325/82 application Haji Gul Khan Gulfraz and Habibullah had applied for bail before arrest. In Criminal Bail Application No. 594/82 Muhammad Idrees Khan has made the application, whereas in Criminal Bail Application No. 612/82 Abdul Razzak is the applicant.
2. In Criminal Bail Application No. 325/82 Mt. Abdul Khaliq Niazi had appeared for the applicants while in the remaining two applications namely Criminal Bail Application No. 594%82 and 612/82 Mr. Shamshad Alam Lari has appeared for the applicants. The Criminal Bail Applications Nos. 325/82 and 612/82 were for bail before arrest and in both these cases the applicants were granted bail before arrest, whereas in Criminal Bail Application No. 594/82 applicant Muhammad Idrees was granted bail after arrest. In each one of these cases Mr. S. Nasiruddin has filed an application for cancellation of bail, which was granted by this Court. This application could also be termed as opposition to grant of bail. Mr. Muhammad Ibrahim has appeared for the State, and he has placed the police papers before me, from which several factors have been taken into consideration.
3. The brief facts of the case can be gleaned 1from the First Information Report, which was lodged at Baghdadi Police Station by Wali Dad, the injured on 19-4-1982 at 8.15 a. m. His allegations briefly were that shortly after the proceeding mid-night, he was sitting in Gali No. 13 along with Jumma and Yaseen, . When the applicants Idrees, Gulfraz, Habibullah along with their .Father Gul Khan and with their cousin Razzak appeared. It seems Idrees is a. Municipal Councilor and he was involved in a case under section 307, P. P. C. And in such case Walidad was a witness and the allegation is that the applicant Idrees asked the complainant Wali Dad to withhold evidence, but Wali Dad refused, whereupon this incident occurred. It would be profitable to reproduce such portion of the F. I. R. As describes the incident itself. It reads as under:- "Idrees thereupon started names and declared that I should not be allowed to go alive. Idrees took out his revolver and fired at me, which hit me in the chest below right shoulder. I raised cries and Jumma came to my rescue but Gul Khan took out revolver and fired which hit Jumma on right arm and he fell down. Munsif son of Sultan Jan wanted to help Juma when Gulfraz fired from his revolver which hit Munsif in the lower part of his leg. Habibullah and Razzak also started shooting from their revolvers but I and my men escaped."
4. It was also stated that the incident had been witnessed by Siddique, Iqbal, Ghulam Muhammad and Abdul Hakeem. Cries was then raised, which attracted Mst. Noor Bibi mother of the complainant, who took the three injured persons namely Wali Dad,. Juma and Munsif to Civil Hospital.
5. In the said hospital, the three injured were examined and each one of them was found to have suffered punctured wound, which would .In all probability be the result of fire-arm shot. Wali Dad had the wound on the right side of chest, which was lateral to the nipple, Yaseen had the wound on the back of leg whereas Juma was, found having wound on posterior medial aspect. The injured were not admitted in the Hospital, but were cursorily treated as outdoor patients and allowed to go. It is a grievance of Mr. Nasiruddin that the Medical Officer has not conducted himself in an above-board manner, I would, however, refrain from making any observation on this aspect of the case, as that might prejudice one or the other party at the trial. I would however, observe that Wali Dad was subsequently examined by the Radiologist who has opined that he has suffered a fracture. Such X-Ray plate was shown by Mr. S. Nasiruddin, and the same has been retained on record. There is a further fact, which needs to be mentioned in relation to the medical examination of the injured. The three medical certificates state that the three injured were drowsy, unable to reply to questions, their gait was not normal, and they were unable to walk in a straight line whereas, the pupils their eyes were pin-pointed and reaction was sluggish. The Medical Officer also detected odour which according to him established the result of taking some narcotics. There is, however, nothing on the record to indicate that any saliva or breath of any of these persons was collected or sent for Chemical Examination. On the conclusion of investigation, the case has been submitted in Court for trial, but in spite of two dates of hearing having gone by no evidence has been recorded.
6. The learned Advocates for the applicants have raised a point that the case, which is being tried by an Assistant Sessions Judge cannot possibly result in imposition of sentence of death or imprisonment for life or even for ten years, and, therefore, prohibition contained in section 497, Cr.
7. P. C. Was not attracted. They have further contended that the three injured persons are bad characters and the complainant Wali Dad is involved in several cases, in some of which Idrees is a witness. It is also contended that the injuries caused are simple, and therefore, the offence would not fall under section 307, P. P. C., but would constitute a lesser offence. They have also contended that there is a background of enmity between the parties, and therefore, the allegations would need to be discredited. Lastly the contention is that report has been lodged after nearly 8 hours, and that would indicate tutoring or it may be a case of false implication.
8. Looking to the nature of the injuries as also the manner of commission of this offence, one needs to express that the act was one of extreme daring, because five persons armed themselves with deadly weapons and had in the dead of night chosen to follow the complainant and his companions, with a view to over-awe them so that they should withhold evidence, that he had to give against accused Muhammad Idrees who was being tried on a charge under section 307, P. P.
9. C. In some Court. Each one of these persons used fire-arm and even the F. I. R. Discloses that Idrees caused injury to Wali Dad, Gul Khan caused injury to Juma and Gulfraz caused injury to Munsif. The nature of injuries reveals use of revolvers. In regard to Habibullah and Razzak, it is said that they had resorted to aerial firing presumably to strike terror and desist the neighbours from coming to help or relief of the injured. In case of this nature when five persons go fully armed with deadly weapons in the dead of night to apprehend and cause injury to persons against whom they have grievance and fire at them with revolvers an intention of causing injuries that might have result in death can be reasonably inferred. In cases of firing if injuries are caused on chest or on the right arm, as in this case, the inference can be correctly drawn that the intention was to death. It can, therefore, be said that if allegations made in the F. I. R. And the evidence of witnesses is believed to be true a conviction under section 307, may well follow. In these circumstances, there can be n doubt that section 307, P. P. C. Has bran rightly applied in this case.
10. The learned Advocates have raised a point that in spite of section 307 P. P. C. Having been applied and even if the applicants are ultimately convicted u/s 307, P. P. C. Still the bar contained in subsection (1) of section 497, Cr. P.C. Would not apply in this case, since the accused are being tried by an Assistant Sessions Judge, who can award Jail sentence only for a maximum of 7 years.
11. It is contended that the case cannot be treated as one, in which the offence is punishable with death or imprisonment for life or even for ten years. In short the argument is that, since the trying Court -cannot impose the sentence of imprisonment for life or 10 years the bar contained in section 497, Cr. P. C. Is not applicable. On the plain reading of section 497, Cr. .P. C. It would appear that an accused shall not be released on bail, if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten. Years The import which would appear from the use of these words is that the bar relates by reference to the sentence that is prescribed for the offence in the substantive law. The concept of the power of the Court trying the offence is completely foreign to the principle laid down in section 497, Cr. P. C. The only guiding factor is the nature of the offence, and the powers of the Court are irrelevant. Taking the other view which is canvassed before me would lead one to a fallacious result. The result would be that if two persons on identical charges are placed for trial before two different Courts namely the Court of Additional Sessions Judge and Assistant Sessions Judge ; one who is tried by the inferior Court of Assistant Sessions Judge could be granted bail whereas the other who is tried by the Additional Sessions Judge could not be granted bail, because the Assistant Sessions Judge cannot award a sentence in excess of seven years. It would lead to destruction of uniform protection of law. What is more that while the inferior Court of Assistant Sessions Judge can grant bail, the Superior Court of Additional Sessions Judge cannot grant bail.
12. This could not be the intention of the makers of the law. It may also be mentioned that the law does not create any categories in regard of cases under section 307, P. P. C. By devising in what case, a case be sent up for trial before an Assistant Sessions Judge or Additional Sessions Judge. It may also be stated that words creating a bar to exercise of powers to grant bail as used in section 497 (1), Cr. P. C. Make no reference whatsoever, to the powers of the Court. The words refer only to the punishment for the offence.
13. The learned Advocates have placed reliance on some case-law. They have referred to the case of Amir v. The State (1973 P Cr. L J 205) from Lahore jurisdiction decided by a learned Single Judge.
14. The learned Judge took the view that if in a particular case, the Court is to a position to come to the conclusion, even at the stage of bail that the prosecution case taken to its extreme would not entail the maximum punishment of death or imprisonment for life or 10 years, it would go out of prohibition contained in subsection (1) of section 497, Cr. P. C., so that the Court would have jurisdiction to grant or refuse bail in exercise of its discretion. The other case, the learned Advocates rely, is a case from this High Court decided by a learned Single Judge. The case is entitled as Hoti v.
15. The State (1982 P Cr. L J 763). In this case a reference has been made to the case from Lahore jurisdiction and also to a decision by a learned Single Judge of this Court in Criminal Bail Application No. 500/82. In this case also the same process of reasoning was adopted, but it seems the learned Additional Advocate-General who appeared in that case had no answer to the contention that was raised on behalf of the defence, that since the First Class Magistrate could impose the sentence only of imprisonment for three years, the bar contained in subsection (1) of section 497, Cr. P. C. Was not attracted.
16. In an earlier part of this Order I have considered the features that emerged out of plain language of section 497 (1), Cr. P. C., I have no doubt whatsoever, that bar will be attracted in relation to offence, with which the accused is charged and not by reference to the powers of Court, before which he is being tried.. Taking the other view would lead to serious anomaly because for the same act and the same offence one accused may be treated favourably, and the other unfavourably, solely for the reasons that they are tried in two different Courts with different powers. Such a result needs to b avoided.
17. With all the respect, that I have for the Judges, who had adopted this view I am constrained to take the view that regardless of the venue for trial if that offence is punishable with imprisonment for life or 10 years, the bar contained in section 497, Cr. P. C. Will be attracted without regard to the power of the Court trying them.
18. The learned Advocates, have contended before me that since there was background of enmity between the parties and the complainant party had bad antecedents, therefore factual averments should be discredited. This matter is eminently within the jurisdiction of the trial Court, and on the other hand a person's credibility is not to be totally disregarded, solely for the reason that there was a background of enmity. The matter, however, does not rest there, because four other witnesses were mentioned in the F. I. R. They are Iqbal, Abdul Hakeem, Ghulam Muhammad and Siddique. The learned Additional Advocate General, who had police papers stated that statement of Abdul Hakeem had been recorded by the police and his statement Iqbal does not implicate the applicants. In regard to Ghulam Muhammad and Siddique it was stated that both of them had implicated Idrees and Gul Khan. It was also pointed out by the learned Additional Advocate- General, with all his fairness that police statement of Ghulam Muhammad was recorded after 5 days of the incident. From the circumstances it would emerge that the case of the prosecution does not rest on the words of injured alone, but there were other witnesses namely Ghulam .Muhammad and Muhammad Siddique, who had implicated them. These witnesses appear to be independent and the reasoning that is sought to be employed by the learned Advocate for discrediting the injured witnesses, would not be applicable for discrediting Ghulam Muhammad and Muhammad Siddique.
19. Regard being had to all the circumstances of this case, and the available' material, it appears that a sort of -unanimity of allegation is available in so far as the allegations concerned Idrees and Gul Khan, who had fired shots at Wali Dad and Juma respectively. In regard to Gul Fraz having caused injuries to Munsif or Habibullah and Razzak having fired in the air, Ghulaml Muhammad and Siddique do not appear to support the injured witnesses.
20. In these circumstances, I confirm the interim bail given to the applicants! Other than Idrees and Gul Khan, but decline to admit accused Idrees and Gull Khan to bail. Interim bail granted to Idrees and Gul Khan is hereby cancelled. Interim bail granted to the remaining accused-applicants is confirmed. Order accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.