1994 P Cr (PLP)

Sardar Muhammad Ishaq Khan with Muhammad Munir Peracha for Petitioner. Ch. Zamurad Hussain for the Complainant. S.M. Naeem for the State. This is an application on behalf of Sultan Muhammad alias Shanoo petitioner for his bail after arrest in a case F.I.R. No.72 dated 13-8-1992, registered under section 324/34, P.P.C. (as substituted by Criminal Law (Fourth Amendment) Ordinance (XXX of 1991) at Police Station Pind Sultani, District Attock.

2. Briefly stating the facts of the case are that on 13-8-1992,. the complainant alongwith Ghulam Rasool his brother, was proceeding towards the latter's house, when they reached near the shop of Faqir Muhammad, Sultan. Muhammad the petitioner and Farooq armed with guns, while Muhammad Din and Amjad Mahmood empty-handed, who were already present in the street, launched an attack on the complainant, at the exhortation of Muhammad Din co-accused. Sultan Muhammad petitioner fired gun shot hitting the right arm of the complainant while shot fired by Farooq had gone ineffective.

3. The motive for the occurrence was stated to be an earlier criminal case registered at the instance of Gul Sher complainant, against Sultan Muhammad and others, which was pending in the Court at the time of the present occurrence and the complainant was actively prosecuting the same.

4. Petitioner had earlier applied for his bail before the learned Sessions Judge, Attock but the same was refused to him on 20-1-1992. Hence this petition.

5. The learned counsel for the petitioner contends that the injuries attributed to the petitioner are on the non-vital part of the body, hence it cannot be assumed that the petitioner had intended to commit Qatl-i-Amd; that the grievous injury on the person of the complainant falls in the purview of section 337-F(vi), P.P.C., which is not covered by the prohibitory clause of section 497, Cr.P.C. hence bail in such cases becomes the rule while refusal would be an exception. To support his contention learned counsel has placed reliance on Karam Ellahi v. The State P L D 1992 Pesh.

111. Learned counsel for the petitioner has also submitted that the co-accused who was attributed ineffective firing and whose case was directly covered by the provisions of section 324, P.P.C. was allowed bail by the learned trial Court, as such the petitioner be allowed bail at the point of consistency.

6. On the other hand, learned counsel for the State assisted by the learned counsel for the complainant has vehemently argued that the petitioner having armed himself with a deadly weapon like gun was already present in the street alongwith his co-accused and had launched a premeditated attack on the complainant, who received as many as five injuries on his person including a grievous injury which resulted in the communited fracture of the shaft of right ulna; that the petitioner after having been released on bail in the earlier case registered at the instance of the complainant vide F.I.R. No.125/90 (attested copy has been placed on record) has repeated his attack on the complainant, hence he is not entitled to the concession of bail. The reliance is placed on Muhammad Akram v. State 1992 P Cr. L J 1378.

7. I have considered the contentions of the learned counsel for the parties and have gone through the record minutely. The petitioner was armed with a gun and had effectively fired shot on the complainant by causing grievous injury, resulting in the communited fracture of the shaft of right ulna. The petitioner had the previous enmity with the complainant as the A complainant was prosecuting the earlier case between the parties in an active manner. The case of the co-accused namely Farooq is distinguishable from that of the petitioner, so rule of consistency will not apply, because Farooq co?accused was attributed ineffective firing, while the petitioner has effectively fired a shot on the complainant. Prima facie, there are reasonable grounds to believe that the petitioner has committed an offence which falls in the prohibitory clause of section 497, Cr.P.C. and thus is not entitled to the concession of bail. I have gone through the authority cited by the learned counsel for the petitioner but the same is distinguishable as the case referred to by the learned counsel, was not that of fire-arm injury and the injuries sustained by the complainant in that case were simple in nature caused by Chhuri. As against this, the citation referred to by the learned counsel for the complainant is more in line with the circumstances of the present case. In view of the above discussion, I am not inclined to extend the concession of bail to the petitioner, hence the petition stands dismissed. N.H.Q./S-503/L????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.