RASHEED AHMED RAZVI, J. --- Present applicant/accused is facing trail before the Court of Additional Sessions Judge, Karachi South, for offences under section 302/324/34 PPC vide FIR No. 231/95 P.S. Chakiwara, Karachi.
It is alleged in the above said FIR which was lodged by one Malik Arif Mehmood on 11.9.1995 at about 0/30 hours that he is a resident of Hazara Colony. That his maternal uncle Muhammad Rafique resides in his neighbourhood. That on 10.9.1995 at about 2230 hours (10.30 p.m.) accused Saadat Khan called the complainant and told him that the gutter (manhole) in the lane is- open which is in front of his house and that the complainant should cover the same. It is further alleged in the FIR that Saddat Khan threatened t he complainant with dire consequences, in case if such manhole is not covered. That the complainant stopped the accused/applicant from using abusive language upon which he got furious and took out. a Pistol and started firing at the complainant with intention to kill. That during such quarrel Muhammad Rafique (deceased) intervened who also suffered serious injury. In such circumstances, the above FIR was lodged.
2. I have heard Mr. Muhammad Ashraf Kazi, Advocate for the applicant/accused and Mr.Agha Zafir Ali, Advocate for the State, who has assisted by Masoor Naqvi, SHO, PS Chakiwara during both the hearings. It is contended by Mr. M.A. Kazi, this his is a case of two conflicting versions, one stated in the FIR and the other disclosed in the 161 Cr.P.C, statement of the complainant, which were recorded on the same day. It was also argued that causing of grievious injury is not attributed to the present accused and that the injury suffered by the complainant is simple in nature. He has cited following reported cases:-
(i) Muhammad Afsar v. The State (1994 SCMR 2051 );
(ii) Karam Ellahi v. The State (PLD 1992 Peshawar III);
(iii) Qaisar Yar Haider alias Qaisar Mast ana v. The Stale (1995 MLD 650);
(vi) Wazir Zaman v. The State and another (1996 P.Cr.L.J 722); and
(v) Qaisar v. The State (1995 P.Cr.L.J.1132).
3. M r. Agha Zafir Ali, Advocate for the State has vehemently argued that the present applicant has been nominated in the FIR and that specific role has been assigned. That he has admittedly caused injury to the complainant. That the other injured namely Muhammad Rafique has expired as a result of the alleged incident and this being a case under section 302/34 PPC the present applicant who has shared common intention with the absconding accused is not entitled for bail.
4. On 7.7.1996, during the hearing Mr. Syed Amjad Ali Shah, A.A.G. Sindh then appearing for the State requested for time as neither the supplementary medical report in respect of complainant Muhammad Arif nor post-mortem report of deceased Muhammad Rafique was available in police tile. Accordingly, this Court directed the concerned SHO to appear before this Court alongwith the above, said two reports. The prosecution was not able to produce the post-mortem report of deceased Muhammad Rafique but has submitted supplementary medico-legal report bearing reference No. 3288/95, dated 10,9.1995. Reserved injury was declared to be muscle deep and was classified as Ghayr-Jaifah in nature. According to the previous examination injured Muhammad Arif has received only one injury which is 0. 5 c.m. Muscle deep which was kept reserved.
5. In the case of Muhammad Afsar v. The State cited at serial No. (i) above, Hon'able Supreme Court considered the upto-date case law in the matter of bail in reference to section 307, PPC and section 337-F of the newly amended law (Ordinance XII of 1993). In this reported case, injury caused by the accused was on the ankle of injured and was found to be simple. It was held that at the most this injury falls under the proviso to section 337-F (ii). The cases of Nawab Ali v. The State (PLD 1962 Karachi 269) Dhani Bukhsh v. The State (PLD 1964 Karachi 264) and Taj Muhammad v. The State (PLD 1963 Karachi 118) were referred in the reported case and it was held as follows: "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, PPC it may be observed that the petitioner had caused simple injury on the ankle of the witness Muhammad Nawaz. It has yet to be seen whether he had intended to commit his murder?"
6. In the case of Karam Ellahi cited at serial No. (ii) above, a learned single Judge of Peshawar High Court granted bail to an accused involved in an offence under section 324/34 P.P.C, on the grounds, inter alia, that the Medico Legal Report of complainant/injured comes within section 337-E and that the punishment provided for causing such injury is under section 337-F which does not fall under the prohibitory clause of section 497 Cr.P.C. In the other cases also as mentioned at serial Nos. (iii) to (v) above, bail was grantee to the applicants by learned single Judges of Lahore High Court and Peshawar High Court on the ground that the injury caused was declared to be simple in nature and the punishment provided for causing simple injury does not fall within the prohibitory clause of section 497 Cr.P.C.
7. Mr. M.A. Kazi, Advocate has contended with some force that this is a case of two versions which has created doubts in the entire prosecution case. Be that as it may, further statement of the complainant recorded on the same day of the F.I.R, indicates that another do-accused with the name of Asad was introduced against whom it is alleged that he was the man who attacked with knife and caused death of Muhammad Rafique. Such allegation does not find place in the F.I.R, which was recorded on the same day. The only allegation levelled against the present applicant is that he has fired at injured/complainant Muhammad Arif who has suffered simple injuries. I have perused 161 Cr.P.C., statements of the proposed witnesses. All of them implicated accused Asad for killing deceased Muhammad Rafique. The only allegation against the present applicant/accused is of causing simple injury. Present applicant was arrested from his house on 13.9.1995 and is in detention since then. According to the prosecution, the present applicant has fired only once and that too not at any of the vital part of his body. In these circumstances, it was argued by Mr. M.A.
Kazi, that this does not reflect intention of the accused to commit murder of the injured. There is no allegation that the present accused caused any injury to the deceased. So far, the common intention is concerned, it is pertinent to note that the alleged offence was occurred on the spur of the moment and that there is no allegation of ''premeditation" from the prosecution side. This being the situation,. The alleged common intention becomes a matter of evidence.
8. After going through the police papers and in view of the above case law, I am of the tentative view that-this is a case of further inquiry and that the present applicant Saadat Khan is entitled to be released on bail pending trial. Accused/applicant shall be released on bail upon furnishing one solvent surety of Rs. 200,000/- (Rupees two hundred thousand) with PR bond in the like amount to the satisfaction of the learned trial Court.