' MIR HAZAR KHAN KHOSO, J.---This petition for leave is directed against the Order dated 13th of June, 1994 passed by a Single Judge of the Lahore High Court, Rawalpindi Bench whereby the petitioner was declined concession of bail.
2. It is case of the prosecution that on 3rd March, 1994 complainant, Muhammad Nazir alongwith Muhammad Ramzan, Muhammad Fazil, Muhammad Mumtaz and Muhammad Nawaz had gone to attend their case in the Court of learned Senior Civil Judge/Section 30, Magistrate Pind Dadan Khan. At about 10-30 a.m. Petitioner Muhammad Afsar armed with .7 mm rifle, Ghazanfar Ali armed with .12 bore single-barrel gun and Muhammad Ehsan armed with .7 mm rifle came there. It is further case of the prosecution that petitioner Muhammad Afsar fired at with his .7 mm rifle at Muhammad Nawaz which hit him in front side of his right ankle. Thereafter, Muhammad Afsar, Ghazanfar and Muhammad Ramzan fired at Muhammad Nawaz and his companions which did not hit any one of them. They took shelter in the office of their Advocate, Ch. Nazar Hussain. The motive for the occurrence assigned to the petitioner was that in September, 1993 a party man of petitioner Muhammad Afsar was injured by the complainant, Muhammad Nazir and his other relatives. A case under section 324, P.P.C. Was registered against them. They had come to attend the Court of Senior Civil Judge in that case. The petitioner, his co-accused Ghazanfar and Muhammad Ehsan were arrested and sent for trial. It is further case of the prosecution that on the strength of under section 161, Cr.P.C. Statement of Muhammad Afsar, petitioner F.I.R. For offence under section 324, P.P.C. Was also registered against complainant, Muhammad Nazir and others at the same police station. They were also arrested by the police. Bail applications on behalf of the petitioner, Muhammad Afsar his companions and the accused involved in counter F.I.R. Were moved before the Court of Senior Civil Judge/Section 30, Magistrate, Pind Dadan Khan. The learned Magistrate allowed bail to Zafar Ali, Muhammad Ehsan, the companion of the petitioner as well as to Muhammad Afzal, Muhammad Nazir and others in the counter-case. The petitioner was refused bail on the ground that he had injured Muhammad Nawaz by fire-arm. A bail application on his behalf was moved before the Court of learned Sessions Judge, Jhelum. He also declined to grant bail to the petitioner on the ground that he had caused injury to Muhammad Nawaz. The petitioner then moved bail application for his release on bail before the Lahore High Court, Rawalpindi Bench.
By his order dated 13th of June, 1994, a Single Judge of the Lahore High Court, Rawalpindi Bench declined to grant him bail for the reason that he had caused injury to Muhammad Nawaz and his case falls within prohibitory clause of section 497, Cr.P.C. The petitioner has come before this Court for leave to appeal against the abovesaid order.
3. The learned counsel for the petitioner contended that injury suffered by Muhammad Nawaz was simple in nature and falls under Second Part of section 324, Cr.P.C. Which says that if hurt is caused an offender shall be liable to sentence provided for the hurt actual accused. The learned counsel emphasised that the case of the petitioner at the most falls under section 337-E (2), (b) for which he shall be liable to "Daman" and may also be punished with imprisonment of either description for a term which may extend to three years as ta'zir. In support of his contentions he relied upon cases reported in (PLD 1992 Pesh. 111) (PLD 1994 Lahore page 344). Besides he contended that the case of the petitioner is of further inquiry. It is yet to be ascertained as which of the party was aggressor at the time of occurrence. It was also contended by the learned counsel for the petitioner that his case does not fall within the prohibitory clause of section 497, Cr.P.C. As the petitioner had no intention to kill the witnesses. In that respect he relied upon cases reported in (PLD 1962 (W.P.)
Karachi 269), (PLD 1963 (W.P.) Karachi 118), (PLD 1964 (W.P.) Karachi 264).
4. The learned counsel for the State vehemently opposed the application of the petitioner on the ground that he had caused rifle injuries to the petitioner hence his case falls within the prohibitory clause of section 497, Cr.P.C. As such he was not entitled for bail. He relied on case reported in (PLD 1990 SC 83).
5. To support his contentions the learned counsel for the petitioner took us through the proviso of section 307, P.P.C. And section 324 of the new law. To appreciate the difference between the old section 307 and new section 324 of the Criminal Law Amendment Ordinance, 1993, it would be beneficial to reproduce the same:-- "Section 307, P.P.C. Old law:
307. Attempt to murder:--Whoever does any act with such intention or. Knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and, shall also be liable to fine; 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."
' Section 324 P.P.C. Of the new law: "Section 324. Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-e-amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused: ' Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to rash and may also be punished with imprisonment of either description for a term which may extend to seven yeaRs,"
' The first part of the old and new sections provide imprisonment of either description for a term which may extend to ten years and is also liable to fine. Under old section 307, P.P.C. If hurt is caused to any person by such act the offender was liable to imprisonment for life or to such punishment as was mentioned hereinabove; but under the new law i,e. Section 324, P.P.C. If hurt is caused to any person by such act the offender shall be liable to the punishment provided either of description for hurt caused. It may be pertinent to observe that witness Muhammad Nawaz had received injury on his ankle which is not on the vital part of the body; besides it was found to be simple one. The injury thus at the most falls under the proviso section 337-F(ii) of the new law (Criminal Law Second Amendment, Ordinance, XII of 1993); it reads as under:-- "337-F. Punishment of ghayr-jaifah.-- Whoever by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes --
(i) xxxxxxxxxxxxxxxxxxxxxx XXXXXXXXXXX XX XX XXXXXXX
(ii) Badi'ah to any person, shall be liable to Daman and may also be punished with imprisonment of either description for a term which may extend to three years as Ta'zir."
' The said part of the above sub-clause provides sentence liable to 'Daman' and also punishment with imprisonment of either description for a term which may extend to three years as Ta'zir. The learned Judge of Peshawar High Court in case Karam Elahi v. The State (PLD 1992 Pesh. 111) had taken the view as under:-- "307. Attempt to murder.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 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."
' 324. Attempt to commit Qatl-i-amd.-- Whoever does any act with such intention or knowledge, and under such circumstances, that if he by that act caused Qatl he would be guilty of Qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused."
' It would be seen that in Part I of the new section for the word 'murder' Qatl-i-amd' has been used and for 'death' 'Qatl' has been substituted; the rest of the phrase is the same. In Part II of old section the offender was liable to life imprisonment for the hurt caused, whereas in the new section the offender shall be liable to punishment for the hurt caused, depending on the kind of hurt, the details of which have been given in other sections of the Ordinance.
In this case the medico-legal report of Muhammad Niaz complainant would show that he received incised wound 1-1/2" x 1/4" x muscle deep on the lateral side of the left upper arm, incised wound 1" x 1/4" x muscle deep on the chest, 2-1/2" medial to left nipple, and an abrasion 1/4" x 1/4" on the palm of the left hand. This kind of injuries would fall within the definition of 'Badi'ah', the punishment provided thereof is ' Daman' and imprisonment which may extend to three years as Tazir'.
' In my view the offence would fall, under second part of section 324 of the Criminal Law (Amendment) Ordinance, 1991 which in turn would fall under section 337-E, subsection (2) (b) and punishment for which is provided under section 337-F, clause (ii). The offence does not fall under the prohibitory clause, therefore, the application for bail is allowed, the petitioner is admitted to bail in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.
' In similar situation, the learned Judge of Lahore High Court in case Shahbaz Ahmad and another v.
The State (PLD 1994 Lahore 344) held as under:-- "The attempt at Qatl-i-Amd is equated to actual Qatl-i-Amd which has been defined in section 300, P.P.C. And for which defined in section 300, P.P.C. And for which sentence has been provided in section 302, P.P.C. How the legislature in its wisdom has equated the attempt at Qatl-i-Amd with actual Qatl-i-Amd? Is very hard to understand. Not only this but something more. For attempt at Qatl which has been equated to Qatl-i-Amd in opening part of section 324, P.P.C. If hurt is caused, the offender is to be liable for punishment provided for the hurt caused, meaning thereby that if no hurt is caused, the sentence is up to ten years with fine but if some hurt is actually caused covered by sections 337-A and 337-F, the sentence is to be much less."
' In such view of the fact we feel that the case of the petitioner falls in Second Part section 324 of the Criminal Law Amendment Act, 1991 which comes within the provision of section 337-F clause (ii) and does not fall within the prohibitory clause of section 497, Cr.P.C. However, even turning to old law section 307, P.P.C. It may be observed that the petitioner had cuased simple injury on the ankle of the witness Muhammad Nawaz. It has yet to be seen whether he had intended to commit his murder? In case of Nawab Ali v. State (PLD 1962 (W.P.) Karachi 269), a Single Judge of the Karachi High Court Bench had taken the view in words as under:-- "The Code does not define attempt: it is true that the title of section 307 cannot modify the plain grammatical meaning of the words of the section itself, but in applying the section regard should be had both to the title and the body of the section. The ordinary meaning of attempt is that an act falls short of its intended result owing to some extraneous cutting short, miscalculation, or unknown factor. Here none of these causes of failure of intention was present. The presumption is that a man intends the natural and probable consequences of his act; but that presumption, except in exceptional cases, does not extend to consequences which have not occurred. Here the man having recovered, the injury was not sufficient in the ordinary course of nature to cause death, and I see no reason in this case to presume that he intended anything beyond inflicting the injury which in fact he did inflict namely an injury which was not sufficient in the ordinary course of nature to cause death. It is not necessary for me to discuss whether sufficiency to cause death is a matter of pure fact as held by the Supreme Court of India in Virsa Singh's case (AIR 1958 SC 465), or is a matter of intention as appears to be contemplated by the last sentence of illustration (b) to section 300, P.P.C. For if the former proposition is correct, then the intention in clause thirdly is qualified by the condition that in fact the injury must be sufficient, while if the later proposition is correct, then I hold that that intention is not proved."
' A Single Judge of Karachi High Court in case of Dhani Bux v. The State (PLD 1964 (W.P.) Karachi 264), has taken the view as under:-- "We cannot from the nature of the injuries themselves reach the only conclusion, namely that there was an intention to kill in this case."
' In case of Taj Muhammad v. The State reported in (PLD 1963 (W.P.) Karachi 118), a Single Judge of the High Court has taken the view as under:-- "It seems to me that the two essential ingredients of an offence under section 307, P.P.C. Are: firstly, the doing of an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events and secondly, the presence of the necessary intention or knowledge that death would ensue as a result of that act. Now, intention is a state of mind which is not ordinarily ascertainable and which can only be inferred from external acts. It is well-known that the thought of man is not discernible and a well-known jurist has stated that:- ' The thought of man is not triable because even the devil himself knoweth not the thought of man.'
' Intention, then, is .To be gathered or inferred from external acts and, therefore, for this purpose it is very necessary to examine the act itself and to see whether it is such an act that by itself is ordinarily capable for causing death in the natural and ordinary course of events. Now applying these principles to the facts of the present case I find that although the appellant had a big knife with a blade three and a half inches long, yet the dimensions of the two injuries inflicted by him upon the injured are so slight as to indicate that it was not his intention to put an end to the life of the injured. The doctor has said that:-- ' the injuries were muscle deep and were not dangerous to life' . And again he has said: "the patient left the hospital after examination and dressing".
' The appellant has to be punished for what he has actually done and not for what he might have done. This, according to me, is precisely where the trial Magistrate has erred in holding that:- ' had the said injuries gone deeper there was every likelihood that they would have killed him.'
' Consequently, I cannot agree with the finding of the learned Magistrate that the offence in this case falls under section 307, P.P.C."
6. Coming to the point of case further inquiry, it may be observed that a criminal case of the parties was pending before the Court of learned Senior Civil Judge/Section 30 Magistrate, Pind Dadan Khan. Both of them are alleged were armed; they exchanged firing. It has yet to seen as to who was the aggressor party, however, learned counsel for the State while relying on case Mst. Bashiran Bibi v. Nisar Ahmad Khan and others (PLD 1990 SC 83), contended that expression "further inquiry" was not to be taken lightly nor it was to be extended unnecessarily. The authority has no relevancy with the facts of the case. In the attending circumstances it can be very easily said that it is a case of further inquiry.
7. We, are, therefore, inclined to convert the petition into an appeal and allow the same. The petitioner/appellant is granted bail in the sum of Rs,one lac with two sureties with P.R. Bond of the like amount to the satisfaction of the trial Court.