' The applicants are being proceeded against under section 307/34, P.P.C. In Crime No,212/89 of Police Station Jamshed Quarters, Karachi, East on the basis of an F.I.R. Lodged by Muhammad Anwar in which he stated that he and his uncle Haji Muzaffar Khan were taking their buffalo for grazing along the bank of the Lyari River and when they passed through the but of applicant No,1 Rustom Khan they saw the three applicants out of whom Rustom Khan was armed with a hatchet and the remaining two with Dandas. All the three applicants started abusing Muzaffar Khan and said that their goats were being frightened by the presence of buffalo, that they had also previously warned Muzaffar Khan not to bring his buffalo in this area and saying this they started assaulting Muzaffar Khan with Danda and after overpowering him, attacked him with hatchet from the blunt side. Abdul Qayoom, Bashir Hussain and some others also witnessed the incident and tried to catch the applicants but they ran away.
2. There is delay of about 14 hours in the recording of the FIR., even though the place of Wardat was only about one kilometre from the police station. This delay has not been explained satisfactorily, at least for the purpose of this bail application. The medical report of the injured does not disclose any hatchet injury and all injuries are attributed to hard and blunt object. The injured was completely at the mercy of the applicants and yet he received only superficial injuries. Only injury No,1 which was originally recorded as swelling of the head was later determined as grievous as fracture of skull was discovered. In the light of time facts, learned counsel for the applicants claimed that offence under section 307, P.P.C. Was not made out. He argued that Muzaffar Khan being at the mercy of the applicants, he could have been done to death without any difficulty or at least would have been given blows from the sharp side of the hatchet if the intention of the applicants was to kill him. In this connection a reference was made to the judgment in Abdul Majeed v. State 1973 SCMR 108. Since attempt to murder has not been defined in the law, their Lordships in the Supreme Court exhaustively dealt with this point and laid down that an attempt to commit a crime consists of the elements of (i) the intent to commit crime, (ii) performance of some acts towards the commission of the crime and (iii) failure to consummate its commission on account of the circumstances beyond the control of the offender and that whether any given act or series of acts constitute a criminal attempt punishable under the Penal Law is a question of fact.
It was argued that the third ingredient, constituting the attempt to kill Muzaffar Khan has not been sufficiently established by the prosecution inasmuch as it is not shown why, if the applicants wanted to kill Muzaffar Khan, did they not use the sharp side of the hatchet and contented themselves with causing only superficial injuries. After considering the facts of the case and the observations of their Lordships in the above-noted judgment I find force in the arguments of learned counsel for the applicants. The applicability of section 307 is, therefore, subject to further enquiry and, more appropriately, the case appears to fall under section 325 or 326, P.P.C. Learned A.A.-G. Does not oppose the bail application. I would, therefore, order that the applicants may be released on bail on furnishing one surety in the sum of Rs,30,000 each with P.R. Bond in the like amount to the satisfaction of the trial Judge.