' The petitioner herein is charged along with his absconding co-accused Haroon under section 324/34, P.P.C. Qisas and Diyat Ordinance for causing fire-arm injury in the chest to complainant Badam on 24-4-1995. He was allowed bail by the learned Sub-Divisional Magistrate, Lahore, District Swabi vide his order, dated 28-5-1995. On application by the complainant the learned Additional Sessions Judge, Swabi cancelled the bail of the petitioner vide his order, dated 2-8-1995. Hence this application for bail.
2. The prosecution case is that on the day of occurrence the complainant had gone to the house of his relative. The petitioner and his absconding co-accused Harpoon had waylaid him. At 7-00 hours while he was on his way back to his house, the two accused on seeing him fired at him as a result of which he was hit in the chest. Rawail and Abdul Ghafoor witnessed the occurrence. Motive attributed to the two accused allegedly was that on the preceding day there had ensued altercation between the parties.
3. The report of the occurrence was lodged by the complainant the same day at 7-30 a.m. In Police Station Lahore. During investigation, the police recovered 7 empties of 7.62 bore from the place of occurrence. The complainant was medically examined by the Medical Officer. The complainant had sustained one fire-arm injury in the chest. The nature of the injury in the opinion of the Medical Officer was grievous. The petitioner was arrested after about a fortnight.
4. In support of this petition, the learned counsel for the petitioner contended that for the purpose of bail presently the case of the petitioner would fall under the second part of section 324, Qisas and Diyat Ordinance, which deals with the punishment of "Arsh". According to the learned counsel there is no justification to take into consideration the first part of the section which prescribes punishment of 10 years' imprisonment and fine as Tazir. In support of his contention, he referred to an authority reported in the case of Zulfiqar v. The State 1994 PCr.LJ 2285 to show that in a similar case under section 324, Qisas and Diyat Ordinance, the learned Judge observed that the intention of the accused to kill remains yet to be determined. The learned counsel for the petitioner further relied on an authority reported in the case of Bashir v. The State 1995 PCr.LJ 412 to show that in case where offence is obviated with payment of Diyat or "Arsh" or "Daman", the accused would be entitled to bail. The learned counsel further argued that as two persons have been charged, for causing the fire-arm injury to the complainant and as it is yet to be determined as to with whose shot the complainant was hit, this according to the learned counsel, constitutes reasonable ground to justify bail to the accused. In support of his contention he relied on an authority reported in the case of Tariq Bashir v. The State PLD 1995 SC 34 to show that in that case the Honorable Judges of the Supreme Court observed that in a case where the accused satisfies the Court that there are no reasonable grounds to believe that he is connected with the crime he makes out a case for bail. He further relied on an authority of the Supreme Court in the case of Muhammad Afsar v. The State 1994 SCM R 2051 to show that in a similar case under section 324, Qisas and Diyat Ordinance, the Honorable Supreme Court allowed bail to the accused holding that the case of accused would fall under section 337-F(ii), P.P.C. (as amended).
5. The learned Additional Advocate-General on the other hand contended that the petitioner is directly charged in the F.I.R. For firing at the complainant as a result of which he was hit in the vital part of his body, the occurrence took place in broad daylight, two eye-witnesses have witnessed the occurrence, therefore, the petitioner is not entitled to bail.
6. Mr. K.G. Saber, learned counsel for the complainant supported the argument of the learned Additional Advocate-General.
7. Before proceeding to deal with the contentions of the learned counsel for the petitioner in the light of the case-law relied upon by him, let us first examine section 324, Qisas and Diyat Ordinance, which reads as follows:-- "Attempt to commit Qatl-e-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."
8. This section of law consists of two parts. The first part deals with the cases of attempted murder in which no hurt is caused and provides a punishment of ten years' imprisonment and fine therefor.
The second part deals with the cases in which hurt is caused. In the case falling under this part, it is to be seen as to what kind of hurt has been caused and the accused is to be awarded the punishment provided for the hurt. However, if the hurt so caused is punishable with Qisas and the same is not executable, the offender is to be awarded the sentence of imprisonment up to seven years as Ta'azir.
9. The instant case being not a case of ineffective firing, the first part of section 324, P.P.C. Goes out of play and similarly the hurt caused to the victim being not punishable with Qisas, the proviso to the said section also does not apply. The victim, according to the medical report, has received grievous injury on the left side of his chest which has extended to the body cavity of trunk. In this respect, sections 337-B and 337-C are reproduced as under:-- ' Section 337-B. Jurh- (1) Whoever causes on any part of the body of a person, other than the head or face, a hurt which leaves a mark of the wound, whether temporary or permanent, is said to cause Jurh.
(2) Jurh is of two kinds, namely:--(a) Jaifah; and (b) Ghayr-Jaifah.
' Section 337-C. Whoever causes Jurh in which the injury extends to the body cavity of the trunk, is said to cause Jaifah.
' Keeping in view the nature and location of the injury caused to the complainant in the present case, it is clear that the hurt caused falls under the definition of Jaifah as given in section 337-C, P.P.C. Which is punishable under section 337-D, P.P.C. With Arsh equal to one third of Diyat and the offender may also be awarded the punishment of imprisonment for a period upto ten years.
9. Coming to the contention of the learned counsel for the petitioner that since it is yet to be determined whether the accused did intend to kill the complainant or not and most probably he may be awarded the punishment of Arsh only, therefore, in view of 1994 PCr.LJ 2285 and 1995 PCr.LJ 412, the accused is entitled to bail, it may be observed that both these authorities are distinguishable from the instant case. In the first cited case, none of the injuries was punishable with imprisonment for more than five years whereas in the instant case, the hurt caused is punishable with imprisonment for a period up to ten years in addition to Arsh. Moreover, in both the cited cases, the occurrences were not pre-planned and there was sufficient scope for further inquiry into the intention of the accused whether they did or did not intend to kill the victims thus giving vast way to the possibility that the accused would likely be awarded only the punishment of Arsh. From the facts of both the cited cases, it appears that the accused were in a position to do more than what they had done but they employed a certain degree of restraint and thus prima facie they deserved leniency and non-awarding of the discretionary sentence of imprisonment. In the instant case, the accused had waylaid the victim, had fired effectively at him with 7.62 bore rifles and did whatever was possible for them. They have caused grievous injury on the vital part of the body of the victim in a broad daylight and one can safely infer that the accused did believe that the injury caused to the victim was sufficient for causing his death, therefore, they left him without further firing at him in order to save their own skin. No doubt, the normal penalty provided by section 337-D is Arsh but, in my opinion, where the accused acts in a cruel or forceful manner, the last portion of the section will certainly come into play which provides the punishment of imprisonment for a period which may extend to ten years in addition to Arsh. In the instant case, as stated above, the accused did have a motive for the offence, they had well-arranged attack on the complainant, waylaid him, fired at him with sophisticated weapons, caused grievous injury to him on vital part and thus did all what was possible for them, therefore, they have not employed any degree of restraint so as to confine their case to the normal penalty of Arsh and it is prima facie, bound to reach the second part of section 337-D, P.P.C. Thus at this stage, there is no possibility that the accused would be punished only with Arsh as were the cases in the cited authorities.
10. Similarly the authority reported as 1994 SCM R 2051 relied upon by the learned counsel for the petitioner is also distinguishable from the instant case. In that case, there was allegedly cross-firing between the parties. The victim had suffered injury on his ankle. The Honorable Supreme Court observed that it has yet to be seen as to who was the aggressor party. The Honorable Supreme Court also took note of the kind of the injury caused by the victim on his ankle and observed that the petitioner had caused simple injury on the ankle of the victim and it has yet to be seen whether petitioner had intended to commit his murder. In the present case, the victim sustained fire-arm injury on the vital part of his body. It was not a cross-case. It is alleged that the accused had waylaid the complainant party, therefore, he was charged under section 324 of the Ordinance.
11. For the present the case of the petitioner cannot be isolated from the case of his absconding co- accused to hold that the petitioner was just a spectator at the time of occurrence and had not participated in the occurrence. In view of the material brought on record, reasonable grounds exist to believe that the two accused had formed common intention to kill the complainant therefore, they are equally responsible for the commission of the offence. It may be observed that it is an established principle of law in criminal cases that the intention of the accused is to be gathered or inferred from the external act attributed to him. The petitioner, as stated above, is directly charged in the F.I.R. There is no question of delay in lodging the F.I.R. Motive for the offence exists. The petitioner was arrested after about a fortnight. Reasonable grounds, therefore, exist to believe that prima facie petitioner is connected with the crime punishable under section 337-D, Qisas and Diyat Ordinance.
12. This bail application is, therefore, dismissed.