S.M.ZUBAIR, J.--Muzaffar Khan and Muhammad Aslam petitioners, who along with others are involved in a case under sections 324/149 and. 148 PPC arising out of F.I.R. No350, dated 27-8-1992, registered at Police Station City Mianwali, seek to be admitted to bail.
2. As per F.I.R., the prosecution version is that the petitioners, who were armed with DB guns, alongwith others, who too were armed with firearms, launched a murderous attack on Ziaullah, in the premises of District Courts Mianwali. First fire of Muhammad Aslam petitioner hit on the left arm of Ziaullah, followed by the shot of Amir Abdullah, which hit him on his abdomen. The fire of Muzaffar Khan petitioner hit on the left hand of Ziaullah.
3. The learned counsel for the petitioners contended that as the injuries attributed to the petitioners, though with fire-arms, are simple in nature; hence they are liable under section 337-F PPC and not under section 324 PPC and that offence does not fall within the prohibitory clause.
Elaborating his point further, he has relied upon the wordings of section 324 PPC, because, according to the learned counsel, if hurt is not caused then the offence would fall under first part of section 324 PPC, but if hurt is caused, then the offence would be according to the nature of injury sustained. He has placed reliance on P.L.D. 1992 Peshawar 125.
In addition to that, learned counsel contended that Muzaffar Khan petitioner is sick and infirm person, and on this score alone he is entitled to bail. He also submitted that it is a Case of two versions. The petitioners are involved in case FIR No.350, dated 27-8-1992, under sections 324/149/148 PPC registered against them at the instance of Hamidullah Khan, Advocate, father of the injured P.W. Whereas the complainant party is involved in case FIR No.351 of even date which was recorded at 1.30 p.m. Under the aforesaid sections at the instance of Javed Akbar Khan, in the same police station, hence the case against the petitioners is one of further inquiry, as it would be determined after the recording of detailed evidence, which party was the aggressor, so they deserve the concession of bail.
He also sought bail on the principle of consistency in law, as the accused mentioned in FIR No.351 are on bail, whereas the petitioners are behind the bars since 4/5 months without any meaningful progress in the trial, placed reliance on 1978 P.Cr.L.J. 300 and 1983 P.Cr.L.J. 214.
4. Learned counsel for the State assisted by the learned counsel for the complainant and the police officer has vehemently opposed this bail application on the ground that in view of the background of enmity mentioned in the F.I.R, itself and the nature of weapons used, clearly show that the petitioners intended to cause Qatl-i-Amd of Ziaullah Khan injured P.W. He further submitted that in the cross F.I.R. No.351, neither complainant nor any other witness received any injury; hence the principle of consistency in law is not applicable, as in case FIR No.350, which was lodged promptly by Hamidullah Khan, Ziaullah Khan injured received three injuries, out of which injury No.2 attributed to Amir Abdullah (absconder) is Jaifah punishable under section 337D PPC, for ten years, hence the offence falls within the prohibitory clause. In addition to that, learned counsel submitted that by virtue of application of section 149 PPC, the petitioners being the members of the unlawful assembly are liable for the act of the principal accused Amir Abdullah (absconder), even if the application of section 324 PPC is doubtful.
4. I have heard the learned counsel for the parties at length and have perused the record.
Admittedly the injuries attributed to the petitioner, though with fire-arms, are simple in ..nature and on non-vital parts of the body. It is true that in case P.L.D. 1992 Peshawar 125, a learned Judge made observations that section 324 PPC is not happlly worded piece of legislation, but I need not dwell on this legal issue further as I am going to decide this bail application on a different legal plane, that is, on the application of provisions of section 149 PPC.
5. In view of august Supreme Court's decision in P.L.D. 1972 S.C.81, if at a bail stage, the Court can examine the material to find out the defence of the accused, it can also examine the material in order to find out whether in the given circumstances application of section 149 PPC is legally permissible or not.
Applying the aforesaid principle of law to the facts of this case, I find if x section 324 PPC is not made applicable for the sake of discussion, still on the principle of vicarious liability as enshrined in section 149 PPC, the petitioners are liable for the act of Amir Abdullah, the principal accused, because injury No.2 received by the injured P.W. Is Jaifah which is punishable for ten years; hence the offence falls within the prohibitory clause.
6. The learned Judge has given very valid and cogent reasons while rejecting the bail petition of Muzaffar Khan on medical grounds, because the disease from which he is suffering can easily be treated in the jail hospital and if any complication arises, then he can be referred to other hospital.
7. The upshot of the above discussion is that no case for1 grant of bail is made out. The petition is accordingly dismissed.