Vide F.I.R. No. 117 Police Station Shergarh dated 23-3-1991, Fazal Muhammad injured registered a case against Gul Afzal accused-petitioner and his brother Islam Bacha stating that he and his brother Said Muhammad P.W. Were going to mosque for `Isha' prayers that as soon they reached near the saw mill of Sajnal Shah,, Gul Afzal accused-petitioner and his brother Islam Bacha appeared duly armed and they instantaneously opened firing at them with intention to murder them, that as a result of the pistol fireshot of Gul Afzal accused-petitioner the complainant was hit on the shin of his left leg and was injured while his brother Said Muhammad escaped the fireshots and afterwards the accused had decamped from the spot. Motive was given that a day before the incident Said Muhammad P.W. Had altercated with the accused over pruning of trees.
2. Accused had gone in hide and appeared on the surface In November, 1991, after some 8 months of the occurrence. They surrendered their arrest and immediately applied for bail before Sub- Divisional Magistrate who granted bail to Islam Bach charged for ineffective firing but refused bail to Gul Afzal accused-petitioner. Sessions Judge has also dismissed his subsequent bail application under observations that he was charged for murderous assault by effective firing causing grievous injury to the complainant and was, therefore, not entitled to bail in comparison to Islam Bacha released no bail charged for ineffective firing.
3. Accused-petitioner has at last approached this Court for bail and contended that the offence for which he was charged was punishable with less than ten years' imprisonment as the injury sustained by the complainant was-- Jurh Ghayr-Jaifah of the Hashimah kind liable to punishment of Daman and imprisonment up to 5 years and in his case the grant of bail shall bet he rule and refusal the exception. He further contended that co-accused was charged for an offence punishable with imprisonment for ten years but was still allowed bail and the rule of consistency was not followed in order also to release him on bail along. On the other hand, it was argued that the petitioner was charged for firing along with his co-accused at the complainant and his brother and that as a result of his fireshot the complainant sustained-a grievous injury and that his case was both covered under sections 324 and 337 may be 337-F(N) P.P.C The latter prescribing punishment in Daman in addition to the imprisonment for five years. It was also argued that the accused-petitioner remained fugitive from law for a period of 8 months, .There forthcoming no reasonable explanation and that his such conduct would further disentitle him to the concession of bail.
4. After hearing the learned counsel for the parties and going through the case-law cited at the Bar, a reference is made to Rao Oadeer Khan v. The State (PLD 1981 SC 91 ) in which a bail was refused to an accused because of his abscondence for a period and type since he made repeated applications for anticipatory bail and thus trying to gain advantage thereunder and then absenting for a period and as such his abscondence was considered amounting to abuse of the process of Court and to render the accused disentitled to the discretionary relief of bail. Next reference was made to Muhammad Sadiq v: Sadiq and others (PLD 1985 SC 182 ) and Awal Gul v.
Zawar Khan and others (PLD 1985 SC 402 ) in which it was held that fugitive from law and Courts loses some rights granted by the procedural and also substantive law and that unexplained noticeable abscondence of an accused disentitles him to the concession of bail notwithstanding merits of the case. It was, however, observed that an accused may be released on bail under the first proviso of subsection (1) of section 497, Cr.P.C. As being a woman, child or sick or infirm person or under subsection (2) of section 497, Cr.P.C. That the accused had otherwise become entitled to bail as of right. Further in Najeeb Gul v. Khalid Khan and another (1989 SCMR 899) it was held that abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Cr.P.C. Which is only possible after recording a finding that there are not reasonable grounds for believing that the accused has committed a particular offence and his case is open to further inquiry. In State v. Malik Mukhtar Ahmad Awan (1991 SCMR 322) it was held that the rule was not .Absolute that a fugitive from law should under no circumstance be enlarged on bail although abscondence does constitute a relevant factor while examining the question of bail.
5. It thus comes to that unexplained abscondence bespeaks of a conduct rather a misconduct of the accused and cautions the Court in releasing him on bail, lest he may repeat the misconduct. It will be, however, an abscondence for a duration and of a type in each and every case to be considered as more or less relevant and an important factor as to weigh with the Court in granting or refusing bail to an accused. But abscondence cannot fall in the way of a Court ,to release an accused on bail under the first proviso or third proviso subject to the fourth proviso to subsection
(1) of section 497, Cr.P.C. On grounds as being minor, woman or sick or infirm or to have been detained for a continuous period exceeding one year in case of offence not punishable with death or to have been detained for a continuous period exceeding 2 years in case of an offence punishable with death provided that he is not a previously convicted offender or is a hardened, desperate or dangerous criminal in the opinion of the Court. Further accused may also be released on bail notwithstanding his abscondence in case there are not coming forth reasonable grounds for believing that he has committed the non-bailable offence and that his case is one of further inquiry.
6. In the case .In hand accused is a co-villager charged for effective firing at the complainant and ineffective firing at his brother and the incident was the result of an immediate motive preceding of a day before the occurrence. His abscondence further spread over a period of 8 months and was also not reasonably explained. The Court shall, therefore, take into consideration his unexplained abscondence for a duration and of a type as a relevant and important factor in deciding the bail application.
7. Next offence under section 324, P.P.C. Is punishable with imprisonment up to 10 years as long it is an attempt to commit `qatl amd' and hurt is not caused but if as a result of an attempt hurt is caused the offender shall be liable to the punishment prodded for the hurt caused in the case.
Prima facie herein a hurt of Jurh Ghayr Jaifah in the kind of Hashimah was caused and the offence was punishable in Daman and up to 5 years --imprisonment under section 337-F (v), P.P.C..
Accordingly it was contended that the co-accused charged for attempt to commit `qatl amd' by ineffective firing under section 324, P.P.C. Has been released, while petitioner to have committed an offence under section 337-F (v) punishable with imprisonment less than 10 years has been refused bail. In fact posture made has pointed out an anomaly in the visas and Diyat Ordinance that attempt to commit `qatl amd' not followed by hurt is to attract greater punishment in imprisonment than attempt to commit `qatl amd' followed by hurt.
7-A. Legislature is well advised to take notice of the anomaly and to make suitable amends in section 324, P.P.C. As to more or less bring it in conformity with the old provisions of section 307, P.P.C and in case of use of fire-arm in case of attempt to commit murder it is the only and last act to be done by the culprit that he opens fire at the victim and as soon he opens fire he does not do anything else towards the commission of the offence and if as a result of his fireshot hurt is caused the offender was liable to conviction under the latter part of old section 307, P.P.C.. Prescribing a punishment in imprisonment for life: In case of attempt to commit `qatl amd' existence or non- existence of specific mens rea is a crucial factor. A strong motive followed by use of fire arm causing the hurt are prima facie sufficient to saddle the offender with guilty intention and guilty knowledge and he shall not be released on bail unless his case is covered by the first proviso to subsection (1) of section 497, Cr.P.C. Whereunder the Court may release him on bail or that his case is covered by the third proviso subject to fourth proviso of subsection (1) of section 497 or subsection (2) of section 497, Cr.P.C. Whereunder he is entitled to bail as of right.
8. As far the provisions of subsection (1) of section 497, Cr. P.C. Are concerned those provisions only vest a power in the Court- to release an accused on bail charged for a non-bailable offence but prohibits him not to release him on bail if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. The first part of subsection (1) of section 497,. Cr.P.C. Lays down that grant or refusal of bail in non-bailable cases is a matter' which falls within the discretion of the Court. However, such discretion is to be exercised by the Court with due care and caution keeping in view the peculiar facts and circumstances of each case. Grant of bail in non-bailable cases is not a matter of right.
Courts have, no doubt, been favourably disposed in granting bail in offences not coveted by the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. But it is the nature of the offence and the overall attending circumstances which prompt a Court to grant or refuse a bail in a non-bailable offence. An accused with a motive to saddle him with a criminal intention to commit murder if uses fire-arm is the perpetration of the offence and use of fire-arm is further followed by a hurt and herein grievous hurt he shall not be entitled to bail as of right and in his case the refusal shall be the rule and grant of bail the exception. Consequently, this bail application is hereby dismissed. 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.