1. Applicant Imtiaz Ali who is complainant in, Crime No,105 of 2001 registered on 17-12-2001 at Police Station Badah has applied for cancellation of bail granted to accused Muharram and Mujahid alias Mujoo respondents Nos, 1 and 2 by the learned II-Additional Sessions Judge, Larkana on 20-2-2002.
2. The facts in brief are that on the day of lodging of the F.I.R., the complainant alongwith his uncle Hassan Ali Jhatial -had gone to offer Eid-ul-Fitr prayer. While they were returning back to their village and at about 10-30 hours when they reached near their houses in the street accused namely Arbab alias Arbelo armed with gun 2 Mujahid Hussain alias Mujoo and 3. Muharram both sons of Arbab armed with T.T Pistols came in front of them. Arbab alias Arbelo instigated Mujahid, and Muharram to kill complainant where-after Mujahid Hussain fired at complainant which hit on his left thigh over the knee. The complainant raised cries and fell down whereafter accused Muharram also fired from his pistol directly upon the complainant which also hit on his left thigh.
2. Villagers were attracted due to cries raised by the complainant and the firearm reports. Due to the intervention and appeals in the name of Holy Qur'an and the accused went away to their houses alongwith their respective weapons. The motive as shown is that the complainant and accused Arbelo had exchanged harsh words over some petty matters. some time before this incident and as such the accused fired upon the complainant in order to commit murder/Qatle- Amd.
3. After usual investigation, police submitted the challan and the case is pending in the Court of learned II-Additional Sessions Judge, Larkana who by his order aforesaid has granted bail to the applicants.
4. In support of his plea for cancellation of bail, Mr. Ali Nawaz Ghanghro learned counsel for applicant/complainant has argued that the learned trial Court has erred in law and ignored the principles laid down for grant of refusal of bail by the superior Courts while allowing the bail to the accused/respondents Nos,1 and 2. He has argued that name of both the accused/respondents appear in the F.I.R. with specific part attributed to them which is supported by the ocular version as well as the medical certificate in respect of injuries. Learned counsel has further argued that the view taken by the learned trial Court that the shots were not repeated by the two accused though the complainant was at their mercy and that the seat of injuries is on non-vital part of the body hence section 324, P.P.C. does not stand attracted, is a perverse view. In fact the life of the complainant was saved due to intervention of the persons who were attracted due to his cries and the tire-arm reports. The learned counsel has further argued that the bail has been granted on the ground that the nature of the injuries as certified by the Medical Officer is "Jurah-eGhyr Jaifah Mutalimah" and "Jurah-e-Ghyr Jaifah Damiah" which do not fall within the prohibitary clause, however, the fact has been ignored that the effence under section 324 P.P.C. which is punishable with R.I. which may extend to ten years and tine, falls within the prohibitory clause of section 497 (I), Cr.P.C. The other ground that Arbab alias Arbelo has been granted bail by the learned Sessions Judge cannot be made a ground for grant of bail to the accused/respondents as their case is distinguishable from the case of Arbab alias Arbelo who is attributed the role of instigation and has not caused any injury to the complainant. It is, therefore, vehemently urged that the discretion has been exercised in excess of authority and jurisdiction hence the bail is liable to be cancelled.
5. On the other hand Mr. Roshan Ali Solangi learned counsel for respondents Nos, 1 and 2 has argued that the seat and nature of the injuries are relevant factors for the purpose of determining the intention of an assailant. The injuries attributed to the applicants are not on vital part of the body and the punishment provided for the said injuries does not fall within the prohibitory clause of section 497(1). Cr.P.C. He has further argued that once the discretion has been exercised by a Court of competent jurisdiction than very strong and exceptional grounds are required for interfering with the said order and in support of his contention he has relied upon the case of (1) Muhammad Afsar v. The State (1994 SCM R 2051). (2) Syed Amanullah Shah v. The State (PLD 1996 SC 241) and Saleem Khan v. The State (1999 PCr.L.I 140), to show their nature of the offence is to be assessed keeping in view the nature of injuries. The injuries on the person of injured being on non-vital part of the body. prima facie, show lack of intention of accused to cause Qatl-e-Amd, as such, question of applicability of section 324, P.P.C. as mentioned in the F.I.R. was still. to be determined at trial after examination of complainant and prosecution witness.
6. Mr. Mushtaque Ahmed Kourejo Advocate appearing on behalf of the State has supported the impugned order.
7. I have considered the arguments Advanced by the learned counsel for the applicant and the respondents Nos,1 and 2 so also the learned State counsel, I have also gone through police papers and the case law cited by the learned counsel for the respondents Nos,I and 2.
8. It is a daytime incident and the identity of the accused is not mistaken. Arbelo was assigned the role of instigation and he did not actively participate in the commission of the offence as he has not been attributed to have caused any injury to the injured/complainant, hence his case is distinguishable from other accused. So far case of respondents No,1 and 2 is concerned, there is ocular version corroborated by the medical evidence that the complainant received fire-arm injuries on his left thigh at their hands. The first fire is attributed to respondent Mujahid Hussain whereas the second fire is attributed to co-accused Muharram. Case of respondent Muharram is again distinguishable from that of co-accused Mujahid as no tire-arm has been recovered from him whereas the police has recovered a T.T Pistol from accused Mujahid in presence of the mashirs. Two empties of T.T Pistol were also recovered from the place of incident. The cases cited by the learned counsel for the respondents Nos,1 and 2 are distinguishable. At the time when the case reported as Muhammad Afsar v. The State 1994 SCM R 2051 was decided by the Honourable Supreme Court the words "In addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused" were not added in section 324, P.P.C. The said amendment was introduced through Ordinance LXXIII of 1996. Saleem Khan v. The State (supra) is distinguishable as no motive was assigned and the real facts were suppressed in the F.I.R. whereas in the present case motive has been mentioned by the complainant and there appears to be no suppression of facts. The facts of the said report are also distinguishable as there were cross cases and the point of aggression was yet to be determined. Offence under section 324, P.P.C. is punishable with imprisonment for a term which may extend to ten years and tine. In addition to that, if hurt is caused by any person by such act the offender shall in addition to imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused. The view taken by the learned trial Court that in view of the nature of the injuries the offence committed does not fail within the prohibitory clause of section 497, c Cr.P.C. is not based on correct appreciation of the law and facts. Punishment for causing such injuries shall be in addition to the punishment under section 324. P.P.C. which falls within the prohibitory clause of section 497 (1), Cr.P.C. Frequent use of fire-arms even in disputes over petty matters is most alarming and this trend needs to be curbed.
9. The upshot of the discussion made above is that there is distinction between the case of the respondents. In my opinion there was no justification for grant of bail to granting bail to co- accused Muharram accused Mujahid Hussain. The order however, calls for no interference. The order of learned trial Court granting bail to accused Mujahid Hussain is hereby set aside. Accused Mujahid Hussain alias Mujoo is present in Court and he is ordered to be taken in custody and remanded to the Central Jail Larkana.