' The petitioner has applied for the grant of the hail in a case registered against him vide F.I.R. No, 229, dated 4-7-1989, at Police Station Sanda, Lahore, under section 307/452/34, P.P.C.
2. Briefly the case against the petitioner is that on 4-7-1989, at about 3-00 p.m., the petitioner alongwith one Muhammad Afzal allegedly fired a pistol shot, at Azhar Mahmood which hit him near inguinal region over the non-payment of Rs,100 per week as Jagga Tax for the last six months, on the instigation of his co-accused Muhammad Afzal contentions in support of the present petition.
According to the learned counsel, Azhar Mahmood injured P.W., and the petitioner were friends, and they had a quarrel all of a sudden, on the cutting of jokes, on which Azhar Mahmood took out an unlicensed pistol, and during the grappling, the pistol went off incidentally hitting Azhar Mahmood injured P.W. In support of his contention, the learned counsel has referred to the blackening of the injuries and also the seat of the injury to demonstrate that actually this has been caused on account of grappling otherwise there was nobody to prevent the petitioner, to cause second injury on the injured P.W. With pistol, if he had the intention to kill the injured P.W., hence prima facie the case does not fall within the ambit of section 307, P.P.C. The learned counsel further submitted that the petitioner is a young lad of 18 years and after twisting the facts with great deliberation, the present case has been engineered against the petitioner, with the connivance of the local police, the petitioner was not in Pakistan, as is apparent from his passport, photo copy whereof has been placed on the file of this case, and that he arrived in Pakistan from Japan on 6-2-1989 whereas the occurrence took place on 4-7-1989, hence the version of the prosecution that he had been demanding Jagga Tax for six months is belied by this fact alone. He has also referred to the injury statement of the P.W., to show that the-injury sustained by the P.W., is of a simple nature.
4. The learned counsel further submitted that the challan has been submitted, but no progress has been made in the case due to the non-availability of the case property i,e,, the- scooter which has been given to the co-accused of the petitioner Muhammad Afzal on Superdari. He has also mentioned, that there is a recovery of cartridge at the place of incident, but the pistol recovered at the instance of the petitioner, cannot furnish corroborative piece of evidence, as this recovery has been effected in contravention of the provisions of section 40 of the Qanun-e-Shahadat, as according to the prosecution version, petitioner himself handed over the pistol when he was on ad interim bail, that crime-empty and the alleged weapon were not sent to the Ballistic Expert for opinion.
5. In the end the learned counsel has taken a legal objection, that in the present case although the punishment provided under section 307, P.P.C., may fall within the prohibitory clause, still the case- is pending before a Judicial Magistrate with section 30 powers, the learned Court cannot impose sentence more than seven years, hence the case per se does not fall within the prohibitory clause of section 497(1), Cr.P.C. In this regard he has placed reliance on Amir v. The State PLD 1972 SC 277 and Amir v. The State 1973 P Cr. L J 205 that the bail in cases, not falling within prohibition contained in subsection (1) oi section 497, Cr.P.C., grant of bail to be treated as a rule and withholding ail as an exception and has placed reliance on Hoti v. The State 1982 P Cr. L J 163 on the point when petitioner-accused is being tried by the Assistant Judge who is not competent to award more than seven years' imprisonment, case would stand excluded from prohibitory limits, imposed on bail by subsection (1) of section 497, Cr.P.C., in the circumstances, and has also placed reliance on Shahadat Ali v. The State 1985 P Cr. L J 1 which is on the same point that when the accused is being tried by a Court not competent to inflict sentence upto imprisonment for life or ten years, the case goes out of prohibitory clause contemplated by section 497, Cr.P.C.
6. The learned counsel for the State has vehemently opposed this application and with the assistance of the police official has submitted on merits, that the name of the petitioner is mentioned in the F.I.R., the injured P.W., has supported the prosecution case in its totality. The occurrence took place in the broad daylight and there was no question of mistaken identity of the accused.
7. The learned State counsel further submitted that the criteria for granting bail to the persons, who are accused of offence punishable with death or imprisonment for life or ten years is that if there exists reasonable ground to believe, that they are so involved, then they should not he released, in order to form the opinion 'whether there exists reasonable ground or not', the Court has to look into the following pieces of the evidence which form the material for coming to that opinion i,e, F.I.R., statements of the witnesses recorded under section 161, Cr.P.C., and any incriminating recovery made at the instance of the accused person, and the medical evidence. He further submitted that at the bail stage it is not permissible to enter into the question of evaluating the pleas of the parties at a premature stage when there is no evidence available on record. If this Court enters, into this evaluation, it would be pre-empting the jurisdiction of the trial Court where the case is pending for trial. With respect to the legal plea raised by the learned counsel for the petitioner, that when a case is pending before a Court, which is legally not competent to impose sentence more than seven years, and the case-law relied upon by the learned counsel for the petitioner, the learned State counsel brought to the notice of this Court a Full Bench case of Karachi Bench reported as The State v. Rais Phalwan 1985 P Cr. L J 1024 wherein their Lordships formulated the following question of law for the adjudication by the Full Bench, in which the cases relied upon by the learned counsel for the petitioner were considered exhaustively. The question posed and answered by the Full Bench is:-- "Whether the embargo provided under section 497, Cr.P.C. Prohibiting grant of bail in respect of the offence punishable with death or imprisonment for life, or R.I. For 10 years will be attracted, even if such offence is tried by a Court which cannot award 10 years' rigorous imprisonment."
The learned Judges of the Full Bench held that embargo on the grant of bail, as contemplated by section 497, Cr.P.C. Is attracted, the mere fact that a case is before a Court that cannot pass sentence of death or imprisonment for life or 10 years does not authorise the Court to grant bail by holding that the embargo contained in subsection (1) of section 497, Cr.P.C. Is not attracted.
Respectfully following the Full Bench case, I overrule the legal objection, that the case does not fall within the prohibitory clause as it is being tried by the Magistrate section 30, who is legally not empowered to impose sentence more than seven years.
8. The learned counsel for the State further submitted that the challan has been submitted in Court, the next date for the evidence is fixed for 20th of December, 1989, and has placed reliance on the following case-law in support of his contention that when a case is fixed, normally the superior Courts would not grant or cancel the bail, and leave the parties to wait for the result of the trial. In .This connection, he has placed reliance on Mst. Irshad Begum v. Muhammad Afzal and another 1985 SCMR 1691 and Muhammad Sadiq and others v. The State 1980 SC MR 203. In this regard learned counsel for the petitioner has placed reliance on Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585.
9. The learned counsel for the complainant has submitted that in the case of attempt to murder falling under section 307, P.P.C., the Courts have to see whether any hurt is caused to the complainant or not and cannot go deep into the nature of the injury, and has brought to the notice of this Court the following words of section 307, P.P.C.:- "and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned."
' Elaborating his submission, he explained that in the present case the hurt has been caused to the complainant, even if for the sake of arguments it is conceded that is simple, still the manner and the nature of the weapon, the seat of the injury would clearly show that the intention of the petitioner was to commit the murder of the victim, who was saved by prompt medical aid. In that regard he has placed reliance on Haji Rehmatullah and another v. The State 1979 P Cr. L J 36 and has particularly referred to the case, wherein it was laid down that the hurt as used in section 307, P.P.C., will include simple hurt, as well as grievous hurt, and relied upon Muhammad Aslam and others v. The State PLD 1967 SC 539 and that High Court is not competent to make an assessment of the medical evidence and to form an opinion whether the offence committed by accused falls under section 302 or 325, P.P.C.
10. He has also brought to the notice of this Court the opinion of the doctor which is at pages 27 and 28 of the judicial file, in which the doctor opined that fracture of the inferior ramus of left pubic bone and that report is dated 2-8-1989. Thus, in the present case, the fire-arm hurt has caused the fracture, hence injury is grievous.
11. The learned State counsel has referred sections 346 and 347, Cr.P.C. Which empower the Magistrate to send the case for trial to the Court of Session or High Court, if it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, he shall send the case to the Court of Sessions or High Court, for trial.
12. I have given my anxious consideration to the various contentions of the learned counsel for the parties referred above. I find that at this stage I am not required to go deep into the evaluation of the evidence collected by the prosecution, and the defence plea, raised by the learned counsel for the petitioner, lest it may prejudice the case of either party.
13. At the bail stage the Court has to form an opinion, 'whether there exist reasonable grounds to believe, that petitioner is involved in a case, punishable with death, imprisonment for life or ten years'.
14. For that purpose, the material on the basis of which the Court can form the opinion is F.I.R., medical evidence, statements of the witnesses, any direct or circumstantial evidence collected during the course of the investigation.
15. Applying this principle to the present case, I find the name of the petitioner is mentioned in the F.I.R., the victim has fully supported the prosecution case and there is a recovery of unlicensed pistol at the instance of the petitioner, which the learned counsel for the petitioner denies on a legal objection, but I am not going to comment upon the legal, aspect of this recovery, as it would be the function of the trial Court to evaluate this recovery after recording of evidence.
16. The delay in the progress of the case cannot be attributed to the prosecution, because it has been conceded by the learned counsel for the E petitioner, that the case property scooter was given to Muhammad Afzal co-accused who is on bail on Superdari, and he failed to produce the case property before the Court on the date when witnesses were present.
17. I have been informed by the learned State counsel as well as the counsel for the complainant that the Court has passed order to the effect, that appropriate steps will be taken on the next date of hearing i,e, 20-12-1989, if the Superdar fails to produce the case property before the Court.
In view of the above discussion, I find that the petitioner is involved in a case falling within the prohibitory clause of section 497, Cr.P.C. Which places embargo on otherwise wide powers of this Court for the grant of bail in such cases, and this petition is dismissed accordingly.