1. ' Applicant Ghazi Khan Lund is facing trial for the offences under sections 324 and 337-F(iii), P.P.C. In the Court of learned Sessions Judge, Naushahroferoze in Sessions Case No.183 of 2003, having arisen out of Crime No.2 of 2002 of P.S. Korai District Naushahroferoze.
2. ' The facts in brief as disclosed in the F.I.R. Lodged by complainant Abdul Ghaffar Kandhro on 7-3- 2002 at 2355 hours appear to be that there is some dispute over land between the relatives of complainant Abdul Ghaffar Kandhro with Hashim Lund and others who were annoyed for the said reason and used to say that if the land which adjacent to their houses will not be given to them they will kill some person from Kandhra Community. On 7-3-2002 during the evening time Rashid Ali who is nephew of the complainant had gone to sell milk during evening time as usual. At about 7-30 p.m. When complainant Muhammad Khan, his maternal cousin Abdul Razak and Ahmad Khan were present in their land near the pumping machine for the purpose of their water rotation and had torches in their hands, they heard fire-arm reports and cries of murder, murder. They went towards that direction and on the light of torches they saw applicant/accused Ghazi son of Muhammad Khan Lund having pistol in his hand 2, Ali Hassan and 3, Shahnawaz both sons of Hashim Lund armed with Lathies. They found Rashid All lying injured. Accused persons asked the complainant side not to come near to them, otherwise they would kill them as well. Due to fear, the complainan party did not go near the accused party who went away from the place of incident.
3. Fire-arm injury was found on the right thigh of Rashid Ali, who was lying unconscious. Injured was shifted to Moro Hospital and thereafter the complainant lodged the report at Police Station Korai on the date and time aforementioned.
4. ' Accused/Applicant Ghazi Khan and co-accused Ali Hassan appear to have been apprehended by the police on 5-9-2003, whereas co-accused Shahnawaz is still absconding. Challan was submitted in the Court of learned Civil Judge and Judicial Magistrate Moro, under section 324, P.P.C.
5. Application for bail was filed on behalf of the present applicant/accused and co-accused Ali Hassan. Finding the case of co-accused Ali Hassan distinguishable as he was allegedly armed with Lathi and no overt-act of causing of any injury to injured Rashid Ali was attributed to him bail was granted io him but the bail plea of the applicant Ghazi Khan was declined by the learned Sessions Judge, Naushahroferoze by his order dated 18-10-2003 hence the applicant has approached this.
6. Court.
7. ' I have heard Mr. Arbab Ali Chandio learned counsel for the applicant and Mr. Mumtaz Ali Siddiqui learned State Counsel.
8. ' Main contention in support of his plea for bail as raised by Mr. Chandio is that the case is false and result of enmity over the landed property between the parties which fact has been admitted by the complainant himself in the F.I.R. It is further contended that even according to the F.I.R. Nobody had seen the applicant causing fire-arm injury to injured Rashid Ali, who was found lying injured at the place of incident, hence it is a, case of further enquiry. It is further contended that according to the Medical Certificate injury on the person of injured Rashid Ali has been declared to be Ghayr Jaifah Mutalahimah, which falls under section 337-F (iii) and is punishable upto 3 years. It is further contended that ingredients of section 324 are not made out, as the injuries are on thigh, which is a part of leg and non-vital part of the body, and furthermore there is no allegation of repeating the fire. Moreover, there is no recovery of any fire-arm from the possession of the present applicant hence the applicant/accused deserves to be released on bail.
9. ' Mr. Mumtaz Ali Siddiqui, learned State Counsel has recorded his no objection for the grant of bail.
10. ' I have given due consideration io the arguments of the learned counsel for the applicant and no objection raised by the learned counsel for the State. I have also seen the police papers and Medical Certificate provisional as well as the final, I am of the considered view that it is not a case for grant of bail for various reasons. Indeed act of firing upon Rashid Ali to have been seen by the complainant and the witnesses is not mentioned in the F.I.R. But the fact remains that soon after the incident applicant along with co-accused Ali Hassan and Shahnawaz was found available at the place of incident along with pistol in his hand and Rashid Ali was lying there unconscious having fire-arm injuries as certified by the Medical Officer. Rashid Ali in his statement under section 161, Cr.P.C. Has fully implicated the applicant for having caused fire-arm/pistol shot to him. As per Mashirnama of Wardat some blood-stains were also found at the place of incident and one empty of .12 bore cartridge of red colour was also taken into possession by the police. So far the non- recovery of the crime weapon is concerned, it is evident from the record that the applicant and co- accused kept themselves hiding and avoided their arrest since after the incident on 7-3-2002 till, 5-9-2003 and as such it cannot be expected that the accused will keep crime weapon in -his custody all along so as to produce the same before the police whenever arrested. Furthermore the medical certificate has corroborated the ocular version furnished by the injured Rashid Ali in his statement under section 161, Cr.P.C. Multiple lacerated circular wounds were found on, the person of injured Rashid Ali and he was referred to PMC Nawab Shah for better treatment. The fact that punishment provided for the nature of injury on the person of injured Rashid Ali is not punishable with death, or imprisonment for life or 10 years or the offence under section 337-F(iii) does not fall within the prohibitory clause of section 497. Cr.P.C., is of no avail to the defence in view of the fact that punishment provided under section 324, P.P.C. Falls within the prohibitory clause of section 497, Cr.P.C,. And in a case for attempt to commit Qatl-e-Amd after the amendment of law, the punishment is to be awarded separately for the injuries actually caused.
11. As a result of tentative assessm ent of the material available on- record viz. The F.I.R. 161, Cr.P.C.
12. Statements of the 'witnesses as well as of injured Rashid Ali, Mashirnama of Wardat and medical certificates, which are the relevant pieces of evidence collected during the investigation do not justify the grant of bail at this stage.
13. ' Resultantly this Bail .Application is dismissed. However. The applicant may repeat his bail application before the learned trial Court after some evidence has come on record to justify the grant of ball.