1976 P Cr (PLP)

This is an application by Mirza Khan for cancellation of the bail granted to Lal Khan respondent. The facts are that Lal Khan respondent alongwith Iqbal and Ghazanfar co‑accused are said to have waylaid Mirza Khan petitioner and attacked him. Ghazanfar accused raised a lalkara whereupon La[ Khan, who was sitting behind a bush, armed with a .12 bore gun, fired at Mirza Khan. Two pellets hit Mirza Khan petitioner, one on the left thigh and the other of the right forearm. He fell down whereupon Iqbal co‑accused is alleged to have given him a lathi blow.

2. Iqbal and Ghazanfar were granted bail before arrest by the learned Sessions Judge Rawalpindi. Lal Khan respondent was, however, arrested but subsequently he too was released on bail by the learned Additional Sessions Judge, Rawalpindi, vide his order dated 23‑9‑1974 notwithstanding the fact that he, was the person wide had shot at and injured the complainant. Hence the present application.

3. The learned counsel for the petitioner took me through the impugned order and pointed out that the learned Additional Sessions Judge appears to have been influenced by the fact that although Lal Khan respondent is said to have fired at the complainant with a gun yet the injuries caused on his person were simple in nature and on non‑vital parts of the body and moreover he contented himself with firing only one shot and did not repeat the performance by firing another shot at Mirza Khan although the latter had fallen down from his bicycle and could have easily been shot at again by Lal Khan. From this the learned Additional Sessions Judge appears to have formed the view that Lal Khan bad no intention to kill Mirza Khan and; as such, the offence did not fall under section 307, P. P. C. with the result that the restriction imposed on the grant of bail by section 497(1), Cr. P. C. did not come into play.

4. Learned counsel for the petitioner argued that even when a person shoots at another person with a gun, rifle or other firearm in a manner and under such circumstances that if the shot had hit the latter, it would have killed him, but he misses his aim the offence would still be one under section 307 P. P. C. although even a scratch is not caused by the firing. He submitted that the offence is not reduced merely because the victim is lucky enough to escape unhurt or survives after having been hit. In support of this contention he relied upon the wording of section 307 P. P. C. and pointed out that the attempt of commission of most of the offences in the Penal Code has not been so defined in the majority of cases it has simply been made punishable under section 511, P. P. C. with one half of the sentence provided for the main offence, while in certain other cases the 'attempt' to commit those offences has been punishable with more than 1/2 of the sentence provided for the main offence. The learned counsel argued that in all such cases when it is sought to determine if there had been an `attempt' to commit that offence, the word 'attempt' (Which has not been defined anywhere in the Penal Code) has to be construed in accordance with its dictionary meaning. But in the case of 'Attempt to Murder' the definition specifically provided by the Penal Code word attempt has to be construed. That section reads as follows:‑ "

307. Attempt to murder.‑Whoever does any act with such intention or knowledge, and under. such circumstances that, if he by that ac: caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten )ears, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment or to such punishment as is hereinbefore mentioned." From a reading of this section it is clear that what has to be seen is whether or not in the circumstances of a particular case, the accused person would have been liable for murder, as defined in section 300, P. P. C., in case the victim had died as a result of the act done by the accused. If, in the event of the victim's death, the accused were to be liable for offence under section 362, P. P. C. the offence actually committed by him would fall under section 307, P. P. C. But if, in case the victim's death, the accused was to be liable only for an offence under section 307, P. P. C., the offence committed by him would fall under section

308. P. P. C. In support of his contention be relied upon Ashiq Hussain v. Crown (P L D 1950 Lah. 147) and A Zar Halim and another v. The State (P L, D 1967 Pesh. 59)

6. I think that there is considerable force in the above‑mentioned contention of the learned counsel for the petitioner. However, I feel that, as submitted by the learned counsel for the respondent, the petitioner should have first approached the learned Court which granted the bail in view of the wording of section 497 (5), Cr. P. C. and the observations made in Nazir v. Amir Din and another (1971 S C M R 637).

6. In view of what has been stated above this petition is dismissed. Petition dismissed.