SYED ZAWWAR HUSSAIN JAFERI, J.- Applicants Allah Ditto s/o Imam Bux and Nangan s/o Imam Bux have applied for grant of bail in Crime No. 33/2001 registered at Police Station Pano-akil Cantt in an offence u/Ss. 324, 147, 148 and 149, PPC read with Section 13(d), Arms Ordinance.
2. The applicants/accused were arrested by the Investigating Agency along with the others and after due investigation of the case charge-sheet was filed in the Court having jurisdiction.
3. The bail plea of the present applicants/accused along with the other was filed and vide order dated 11.7.2001 the learned Sessions Judge had declined bail to above-named applicants whereas the co-accused have been released on bail on the ground that they have not caused any injury nor any active role has been attributed against Abdul Hakeem alias Hakeem and Abdul Haleem. Lt will be advantageous to narrate the facts as stated in the FIR.
4. "The complainant Allah Jiwayo Indhar lodged his FIR on 9.6.2001 at Police Station Panoakil Cantt: stating therein that there is dispute in-between the complainant and the accused Allah Ditto and others on matrimonial affairs and as such a criminal case was registered against the son of complainant and others and charge- sheet was filed in the Court of law. Lt was being challenged by issuing threats that if the complainant party will not patched up with them they will murder them. At the night complainant party along with his nephews Khadim s/o Yousuf aged about 20 years and Mushtaque s/o Aziz had gone to nek mard Ali Gohar Khan Indhar at Village Jalal and were returning to their houses, by foot, when they reached at Katcha road near village Hakeem Indhar it was 11-00 p.m. They saw on the moon light, accused Allah Ditto armed with Hatchet, Hakeem with revolver and accused Habibullah and Mangan both were with guns and accused Haleem was armed with lathi. All the applicants along with 2 unidentified persons would be identified if seen having lathis who were with them, when the complainant party reached near accused persons, the applicant/accused Allah Ditto while raising Hakal asked them as to why they are not making compromise with them, today they will murder the complainant party, while saying this caused hatchet blow to complainant which hit him on ' left hand of the complainant, accused Mangan and Habibullah made fires with guns on Khadim s/o Yousuf which hit him and fell down the complainant party extended the .Name of Allah. On. Fire-arm reports Imdad and others'came there and thereafter all the accused went away towards west and the complainant found that he has received injury on finger (little) Khadim had received injury on left leg and blood was oozing, the complainant further states that while taking injured Khadim at P.S. He lodged the instant case stating that accused persons while making unlawful assembly, due to previous enmity, duly armed with arms, with intention to commit murder, have caused hatchet blow to complainant arid fire blow to Khadim."
After registration of the FIR the said applicants and the others were arrested and after rejection of their bail plea the applicants/accused have filed present bail application for grant of bail.
5. It is contended by the learned counsel for the applicants that above-named applicants that above-named applicants were arrested on 13.6.2001 and there is matrimonial dispute between the parties and one criminal case was already pending in the Court and whereas the co-accused Abdul Hakeem and Abdul Haleem have been granted bail by the learned Trial Court as they were involved without any justification, it was further urged by the learned counsel that.The complainant has alleged that the accused Mangan and Habibullah had fired from their guns at injured Khadim Hussain which had hit him but the medical certificate shows that injuries on the persons of injured Khadim as the result of one single fire-arm shot and it is yet to be established as to whose shot had hit the injured Khadim Hussain, lt is further urged by the learned counsel that fire-arm injury sustained by the injured Khadim Hussain are simple in nature and are punishable u/S. 337-F(iii), PPC for 3 years, lt is further argued that the injury on the person of injured Khadim Hussain which is located on the right leg. Lt is also contended by the learned counsel for the applicant that according to medical certificate of injured Allah Jiwayo, it states that one incised cutting completely the distal part of (Lj little finger at the lower middle part cutting also soft tissues and the middle phalangeal bone and the complainant party had deliberately involved the applicants on matrimonial dispute and according to learned counsel the enmity is admitted and no injury is on vital part and the case does not fall under Section 324, PPC and it requires further enquiry. The learned counsel has relied upon the case of Muhammad Akram Vs. The State, reported in PLD 1996 Criminal Case (Lah) 312, Muhammad Afsar Vs. The State, reported in 1994 SCM R 2051 and Muhammad Muzzafar Vs. The State, reported in 1995 P.Cr.L.J. 1345.
6. Mr. Nidamuddin Brohi learned counsel appearing for the State has opposed the prayer made by the learned counsel for the applicants and submits that the above-named applicants/accused are not entitled for concession of bail and the learned Sessions Judge has rightly rejected their bail plea.
7. Mr. Mumtaz Ali Siddiqui learned counsel for the complainant also adopted the arguments of learned State counsel.
8. I have gone through the F.I.R, and the other record placed by the learned counsel for the parties. I have also gone through the impugned order of learned Sessions Judge, ln cited authority of 1994 SCM R 2051 it is observed by the Hon'ble apex Court that if gun injury is received by the victim which was located at his ankle which was not on the vital part of the body besides it was found to be simple one and it was yet to be seen if the accused intended to kill the victim, lt was further held that at the most the offence would fall u/S. 337-F(ii), P.P.C, which does not fall within the prohibitory clause of Section 497, Cr.P.C. The Hon''ble apex Court while dilating upon the provision of Section 307, PPC (Old law) had compared Section 324, PPC of the new law. The learned counsel had read the both provisions of law and it would be beneficial to incorporate the same in extenso as under:- "Section 307, PPC old law.
307. Attempt to murder.- Whoever does any act with such intention or knowledge and under suchcircumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment either description for a term which may extend to ten years, and shalUalso be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned."
Section 324, PPC of the new law: Section 324. 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 such act, the offender shall 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 rash and may also be punished with imprisonment of either description for a term which may extend to seven years.
The first part of the old. And new sections provide imprisonment of either description for a term which may extend to ten years and is also liable to fine. Under the old Section 307, PPC, if hurt is caused to any person by such act the offender was liable to imprisonment for life or to such punishment as was mentioned hereinabove, but under the new law i.e. Section 324; PPC, if hurt is capsed to any person by such act the offender shall be liable to the punishment provided either description for hurt caused, lt may be pertinenj to observe that witness Muhammad Nawaz had received injury on his ankle which is not on the vital part of the body; besides it was found to be simple one. The injury thus at the most falls under the proviso to Section 337-F(ii) of the new law (Criminal Law Second Amendment, Ordinance, XII of 1993), it reads as under:- "337-F. Punishment, of ghayr-haufag. Whoever by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes:-
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(ii) Badi'ah to any person, shall be liable to Daman and may also be punished with imprisonment of either description for a term which may extend to three years as Tazir."
The said part of the above sub-clause provides sentence liable to Daman and also punishment with imprisonment of either description for a term which may extend to three years as Ta'zir. The learned Judge of Peshawar High Court in case Karam Elahi v. The State (PLD 1 992 Pesh. 111) had taken the view as under:- "307. Attempt to murder: Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished withAllah Ditto V. The State (Syed Zawwar Hussain Jaferi, J.) 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 any person by such act, the offence, shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned."
324. Attempt to commit Qati-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 be liable to the punishment provided for the hurt caused." lt would be seen that in Part I of the new section for the word murder' QatH-Amd has been used and for 'death' 'Qatl' has been substituted; the rest of the phrase is the same, ln Part-ll of old section the offender was liable to life imprisonment for the hurt caused, whereas in the new section the offender shall be liable to punishment for the hurt caused, depending on the kind of hurt, the details of which have been given in other sections of the Ordinance."
While considering the other citation of PLJ 1996 Criminal Case (Lah) 312, the Hon'ble High Court PLD 1995 S.C. 34 and 1994 S.C.M.R. 2051 and it has been observed as under:- "Admittedly the injuries are on the non-vital part of the body and have been declared simple by the Medical Officer, lt has been held-by the Hon'ble Supreme Court in number of authorities including PLD 1995 S.C. 34 and 1994 SCM R 2051 that:- S. 497- Penal Code (XLV of 1860), S. 337-F(ii) (as amended by Criminal Law (Second Amendment)
Ordinance (XII of 1993)-Bail-Gun injury received by the victim was on his ankle which was not on the vital part of the body besides it was found to be simple one and it was yet to be seen if the accusedintended to kill the victim.... Injury. Held at the most fell under the provision of Section 337- F(ii) PPC (as amended) and did not fall within the prohibitory clause of S. 497, Cr.P.C, in the circumstances."
Similar views have been taken in 1995 P.Cr.L.J.
9. Lt seems to me that injuries sustained by injured Allah Jiwayo and Khadim Hussain are on non- vital part of the body and it is yet to be seen if he applicants/acCused intended to kill the victim and by respectfully replying upon the above cases I am of the view that the applicants/accused are entitled for the grant of bail as it requires further enquiry in respect of their guilt. Resultantly the bail is granted to the applicants/accused and they may be released on bail provided they furnish surety in the sum of Rs. 100,000/- (Rupees one lac) each and P.R. Bond in the like amount to the satisfaction of the Trial Court.