' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---The petitioner seeks leave to appeal against the order of a learned Single Judge of Peshawar High Court, Abbottabad Bench, Abbottabad, dated 1-2-1996 by which his application for grant of bail pending trial was rejected.
2. Dildar Hussain, complainant, lodged F.I.R. No,328 at Police Station, Saddar, Mansehra, on 21-9- 1995 at- 09-45 hours, against the petitioner and 4 others alleging that he alongwith his brother Khurshid and his servant Ashraf was proceeding to his lands. When they reached the 'Kassi' near Primary School, 'Char', they found Arshad, petitioner, Gul Muhammad, Mushtaq Ahmad, Ishfaq and Khawaj Muhammad respectively armed with .12 bore shotgun, .30 bore pistols, .12 bore shotgun and .7MM rifle. The petitioner and Gul Muhammad co-accused threatened them with dire consequences if they went ahead. Gul Muhammad was alleged to have caught hold of the complainant while the petitioner fired a shot at the complainant and, in consequence, the complainant sustained injuries on his shoulder and face and fell on the ground. Taking him as dead, all the accused including the petitioner made good their escape after firing in the air.
3. After more than eight hours of the incident, one Wali Muhammad lodged a counter F.I.R. No,330 on the same day in the aforementioned Police Station under sections 506 and 109 read with section 34, P,P.C. In which it was alleged that while he alongwith Khawaj Muhammad, Mushtaq brothers inter se, Arshad, petitioner and Muhammad Ishfaq were present in the field tying the stakes of grass Dildar Hussain (complainant, in F.I.R. No,328) along with Khan and Mahwali duly armed with lethal weapons reached the spot and stopped them from their husbandry work and, in order to criminally intimidate them, started firing in the air and forcibly took away the stakes of grass but the former were lucky to have saved themselves.
4. Arshad, petitioner, and two others filed application for bail before a learned Magistrate of the First Class, Mansehra, who allowed bail to Muhammad Rafiq but declined to extend this concession to the petitioner and Gul Muhammad. They filed similar application to the learned Sessions Judge, Mansehra which was also not entertained. They then approached the High Court for bail. A learned Judge in Chambers of High Court granted bail to Gul Muhammad and declined the relief to the petitioner.
5. Sheikh Zamir Hussain, learned counsel for the petitioner, contended that there was no premeditation, in that, it was a case of sudden fight in the field where both the parties had attacked each other. He further maintained that the complainant had concealed the allegation of cross-firing which would entitle the petitioner to the concession of bail. It was lastly submitted that the case against the petitioner would be covered by section 337-A(i) or 337-F(v) of the Pakistan Penal Code, which was punishable with Arsh' or 'Daman' and rigorous imprisonment for two years or five years respectively and would not fall under the prohibitory clause of section 497(1), Cr.P.C. In this context, reliance was placed on Muhammad Afsar v. The State (1994 SCM R 2051) and Sohail v.
Badam and another (1996 P Cr. L J 555).
6. Mr. Muhammad Jamil Khan, learned counsel for the State, assisted by Mr. Muhammad Akbar Khan, learned counsel for the complainant, -contended that the complainant had sustained firearm injuries on his left shoulder and face. Which manifest the act with such intention or knowledge, and under such circumstances, that, if he by that act intended to cause Qatl', therefore, he would be prima facie guilty of 'Qatl-i-Amd'; the punishment provided for this offence would be imprisonment of either description for a term which may extend to ten years, fine and he would be further liable to the punishment provided for the hurt actually caused. It was thus contended that the case, against the petitioner would fall within the prohibitory clause of section 497(1), Cr. P. C .
7. The first contention of the learned counsel for the petitioner has got no substance, in that, the F.I.R. Lodged by the petitioner's side has reflected the fact that the fight had occurred between the parties in the field. It is the case of the petitioner and his co-accused in the F.I.R. Lodged by them that it was a sudden fight in which the complainant's side fired in the air to criminally intimidate them and, therefore, it is not a case of two cross-versions of the occurrence as held by this Court in the case of Iqbal Hussain v. Abdul Sattar and others (PLD 1990 SC 758) wherein identical plea raised by the petitioner was repelled and it was held that the elements of cross-version were against the grant of bail. The 'observations in the case of Iqbal Hussain supra equally apply to the facts and circumstances of the present case.
8. The cases of Muhammad Afsar and Sohail supra are distinguishable, in that; these cases pertain to the period prior to the recent amendment introduced in section 324 of the Pakistan Penal Code.
In order to appreciate the contention of the learned counsel for the State, the newly amended section 324, P.P.C. Is reproduced as under:- "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, in addition to the imprisonment and fine as aforesaid 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 Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years." (Underlining is ours).
' It would be noticed that the words "in addition to the imprisonment and fine as aforesaid" the offender shall "be liable to the punishment provided for the hurt caused" are significant. Under Part I of section 324 ibid whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Salt' he would be guilty of 'Salt-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. After the amendment as aforesaid, if hurt is caused by such any act, the offender shall, in addition to the imprisonment described under Part I and fine as aforesaid shall also be liable to punishment provided for the hurt caused. This amendment has come into force long after the cases of Muhammad Afsar and Sohail. From this it follows that notwithstanding the nature of the injury caused by an offender, if his case is covered by Part I of section 324 as amended he would be liable to the imprisonment for ten years, fine and, in addition to the imprisonment as aforesaid, shall also be liable to the punishment provided for the hurt caused.
9. In the present case, the petitioner is alleged to have caused to the complainant 30/35 multiple pellet entry wounds on the posterior and lateral aspect of left shoulder each 1 mm in size with circular shaped, bleeding and blackening -- corresponding hole in shirt present and; 8/10 pellet entry wounds on the left side of face and chin. Looking to the seats of fire-arm injuries on the person of the complainant, there are reasonable grounds for believing that the petitioner has been guilty of an offence punishable with imprisonment for ten years and, in addition to the imprisonment and fine as aforesaid, also be liable to imprisonment for the hurt caused.
10. We have, therefore, not been persuaded to grant leave to appeal in this I case which is, accordingly, dismissed.