' The facts leading to the present application for bail are that applicants/Allah Dino and Abdullah Mallah, are facing trial in Sessions Case No,251 of 1998 before learned Sessions Judge, Thatta, under sections 324, 504, 34, P.P.C., which has arisen out of F.I.R. No,124 of 1998 of Police Station Sujawal, District Thatta.
2. The brief facts of the prosecution case as disclosed in the F.I.R lodged by complainant Muhammad Salim on 30-11-1998 are reproduced herein below:-- "I am Primary Teacher in the village of Raman Baran. Today, I, my brother Muhammad Sharif Baran, cousin Bassar son of Ahmed Baran and Saleh son of Dhanidino Baran were sowing barley and hurbo in Sr. No,127 of uncle Noor Muhammad Baran. I saw that cattle came in crops standing in Sr.
No,138 of uncle Noor Muhammad at 6-00 hours evening. I. Went running and took out cattle from crop. Whereupon Gulsher alias Shazadao son of Allandino Mallah armed with hatchet came running and abusing said that why I had taken out cattle. I told him that your cattle had come in the crop. On the commotion Allandino son of Aaro Mallah armed with pistol and Abdullah son of Aaro Mallah with gun came running and while abusing Abdullah Mallah made direct fires with gun over me which I dodged. On the notice of fires my brother Muhammad Sharif Baran, cousin Bassar Baran and Saleh Baran came running. Seeing them Allandino Mallah made direct fires over me, the pistol fire hit me on lower portion of left leg. Accused Gulsher alias Shahzadao gave me blunt side hatchet blows over my head and other parts of my body. I fell down. On arrival of above named P.Ws. Above named accused gave abuses and went towards their village. Thereafter, above named P.Ws. Have brought me at Police Station. I am lodging report that accused have made direct fires from gun and pistol and caused blunt side hatchet blows in order to kill me and have injured me. Investigation may be made."
3. The applicants applied for bail before the trial Court but it was declined by impugned order, dated 16-1-1999.
4. I have heard Mr. Aijaz Ahmed Memon, learned counsel for the applicants and Mr. Muhammad Saleh Punhwar, learned counsel on behalf of Advocate General for the State, who vehemently opposes the grant of bail to the applicants.
4-A. The perusal of record shows that applicant Allah Dino being armed with pistol fired upon the complainant with the result complainant received fire-arm injuries on the left leg. The injuries are corroborated by medical evidence. Merely because the medical officer has opined that injuries which complainant has sustained are Shujjah-iKhafifa, punishable for two years, Ghayr-eJaifah Damiyah, punishable for two years, Ghayr-e-Jaifah Hashirnah punishable for five years and Ghayr-e-Jaifah Mutalahimah, punishable for three years, are no ground for grant of bail in each and every case. The Medical Officer is not a Judge in the matter. It is the function of the Court to determine the gravity of offence after considering the act of the accused in the light of peculiar facts and circumstances of each case.
5. It is not universally accepted rule of law that in each and every case, which is not punishable with death, imprisonment for life or for ten years bail must be granted. The superior Court has time and again laid down the rule that in non-bailable offence grant of bail is not right but a concession and if there are reasonable grounds to believe that accused is guilty of the offences which are non-bailable Court can refuse the bail. The offence under section 324, P.P.C. With which applicant is charged is punishable with ten years. Specific allegation of causing fire-arm injuries has been attributed to him, therefore, he is not entitled to bail and his bail plea is dismissed.
6. The allegation against applicant Abdullah is that he was armed with gun and fired upon the complainant, which went wild and did not hit any person. No empty cartridge was found on the spot. Whether applicant Abdullah shared common intention to kill the complainant will be determined at the time of trial and his case is not at par with the case of co-applicant Allah Dino.
Thus it necessitates further enquiry as contemplated under section 497(2), Cr.P.C. Consequently, he is granted bail in the sum of Rs,1,00,000 (one hundred thousand) and P.R. Bond in the like amount to the satisfaction of trial Court.
7. The observations made herein-above are of tentative nature and trial Court will not be influenced in any manner at the time of final adjudication of the matter upon evaluation of evidence adduced by the parties.