1. ' This bail application has been filed on behalf of the applicant/accused Salem Khan, who is facing trial with other co-accused under sections 324, 147, 148 and 149 read with section 34, P.P.C. Before Sessions Judge, Mirpur Khas.
2. ' Briefly stated the facts as per F.I.R. Bearing No,19 of 1998, lodged by the complainant Ali Ahmed at Police Station Satellite Town, Mirpur Khas, on 8-4-1998 are that on the date of incident the complainant and his younger brother Mushahid Hussain came to Mirpur Khas for some personal work and after finishing the work they were returning to their village and when they reached Mehmudabad in front of Aziz Hospital, near Mehmudabad Chowk, at about 8-15 a.m. Accused namely, Saleem Khan (the applicant), Waseem, Aleem, Nadeem and Kaleem were already standing there. The said accused persons seeing the complainant and his brother Mushahid Hussain abused them, they forbade the accused in the meanwhile applicant/accused Saleem at once took out T.T. Pistol from his fold and tired directly on them but the complainant fell down.
3. However, Mushahid Hussain received fire-arm injuries on his person and he fell down. Other co- accused who had pistols also fired but the complainant and Mushahid Hussain fell down and fire missed. In the meantime, Ibrahim son of Aleem and Abdul Aziz son of Ghazi came there and seeing them the accused went away towards their houses after issuing abuses. The complainant found his brother Mushahid Hussain injured having bullet injuries on his arm and another on his hand, which were bleeding. The injured Mushahid Hussain then was taken to Civil hospital, Mirpur Khas by the complainant and above named witnesses and then complainant lodged the report at police station on the same day.
4. ' The applicant Saleem Khan and co-accused Waseem and Aleem filed bail applications in the trial Court, which were heard by the learned 1st Additional Sessions Judge, Mirpur Khas and by impugned order, date 22-4-1998 bail application of the applicant Saleem Khan was rejected and bail was granted to the co-accused Waseem and Aleem.
5. ' Syed Akhtar Saeed, learned counsel appearing for the applicant, has argued that the case against the applicant is false and the applicant and his family members have been involved in the case due to enmity. He contends that as per allegations leveled in the F.I.R. All the accused persons allegedly were armed with pistols and complainant and his brother were at their mercy. Yet the injured received injuries on non-vital parts of his body, which shows that there was lack of any intention to cause murder. He further argued that the accused persons as per F.I.R. Did not repeat their fires, which also prima facie proves that there was no intention to cause murder of any of the complainant party. He, therefore, submitted that section 324, P.P.C. Is not attracted to the facts of the case. The injuries on the person of Mushahid Hussain are said to fall under section 337-F(vi), Munaqilah which is punishable for seven (7) years and does not come under the prohibitory clause as such the case of the applicant Saleem Khan requires further inquiry and he is entitled to bail under section 497(2), Cr.P.C. The learned counsel has placed reliance on the decisions reported as Asghar Ali v. The State 1997 PCr.LJ 1306, Abdul Sattar v. The State 1995 PCr.LJ 639 and Zulfiqar v. The State 1994 PCr.LJ 2285.
6. ' On the other hand, Mr. Mukhtar Ahmed Khanzada, learned State Counsel has opposed the bail application of the applicant contending that the name of the applicant appears in the F.I.R. And specific role has been assigned to him.
7. ' I have heard both the learned counsel at length and have gone through the F.I.R., order of the trial Court, dated 22-4-1998 and material placed on record. I have also perused the case-law cited at Bar by the learned counsel for the applicant.
8. There is no doubt that the name of the applicant appears in the F.I.R. And specific role of causing injuries to the injured Mushahid Hussain has also been assigned to him in the F.I.R. But a bare perusal of F.I.R. Shows that all the accused persons including the above named applicant were armed with pistols but none of the accused persons including the applicant have repeated their fires though the complainant and his brother Mushahid Hussain were completely at their mercy.
9. Prima facie, there appears no intention on the part of the applicant that he intended the death or Qatl-e-Amd of either complainant or his brother Mushahid Hussain. The injuries on the person of the injured Mushahid Hussain are on non-vital part of his body which also prima facie shows lack of his intention to cause Qatl-e-Amd. Under the circumstances of the case and facts, as mentioned in the F.I.R., the question of applicability of section 324, P.P.C. Is still to be determined at trial after examination of complainant and P.W. Mushahid Hussain. It is also strange that no motive has been assigned by the complainant for the alleged attack on him and his brother by the applicant and co-accused which also prima facie shows that the complainant has suppressed the real facts in the F.I.R.
10. ' So far section 337-F(vi), P.P.C. Is concerned, the initial punishment provided for the offence is payment of Daman and the applicant may be punished for seven (7) years as Tazir, which does not come within prohibitory clause.
11. ' In the case of Abdul Sattar (supra) bail was granted by Lahore High Court in a case under section 337-F(ii) and (vi) on the ground that the offence allegedly committed by the applicant/accused did not fall within the prohibitory clause, despite the fact that there was fracture.
12. ' In the case of Asghar Ali (ibid) bail was granted to the accused though the injured had suffered nine (9) injuries on his legs and thighs as a result of two shots fired by accused and co-accused from a close range on the ground that the accused/applicant apparently did not intend to cause the death of the injured and the applicability of section 324, P.P.C. Required further inquiry.
13. ' In yet another case cited by the learned counsel for the applicant/accused Zulfiqar (as above)
14. Peshawar High Court granted bail to the accused in a case under section 324, P.P.C, mainly on the ground that accused's intention to kill was yet to be determined at trial and that punishment for the offence was either Arsh or Daman.
15. ' In the case of Tariq Bashir v. The State PLD 1995 SC 34 it was held by the Honorable Supreme Court that grant of bail in offences punishable with imprisonment for less than ten (10) years is the rule and refusal an exception.
16. ' In the case of Mir Ahmed Gul v. The State 1996 SCM R 979, the Honorable Supreme Court in a case of offence under section 337-F(ii) granted bail with the observation that "offence alleged against accused carried punishment of less than ten (10) years and thus they were entitled to bail.
17. ' In yet another case Umar alias Qaiser v. The State NLR 1996 Criminal 541 Honorable Supreme Court granted bail in a case under section 337-F(v), P.P.C. On the ground that the offence does not fall under prohibitory clause.
18. ' In the recent decision of Honorable Supreme Court in the case of Jan Muhammad v. Haji Noor Jamal 1998 SCM R 500 bail was granted in a case under section 324, P.P.C. Read with section 337, P.P.C. On the same ground that the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C.
19. Considering all aspects of the case and the fact that the alleged injuries on the person of injured Mushahid Hussain were not on vital part of his body and the alleged offence under section 337- F(vi), P.P.C. Does not fall under the prohibitory clause and that applicability of section 324, P.P.C. Is yet to be determined at the time of trial and that no motive has been assigned by the complainant against the applicant and co-accused, I am of the view that the case of the applicant requires further inquiry under subsection (2) to section 497, Cr.P.C.
20. ' I, therefore, allow bail to the applicant/accused Saleem Khan in the sum of Rs,1,00,000 with P.R.
21. Bond in the like amount to the satisfaction of the learned trial Court.
22. ' The above findings are of tentative nature and the trial Court need not be influenced in any way.
23. The trial Court may reach its own conclusion after recording evidence in the case.