1998 PLP 1542 (MLD)

Date of hearing 17th March, 1998. Some days before 6-8-1997 a dispute arose between Kausar Mahboob petitioner-accused and Safdar injured son of Dost Muhammad complainant in a cricket match whereby Kausar Mahboob petitioner was annoyed. Due to the aforesaid motive Kausar Mahboob petitioner is alleged to have surprised Safdar injured on 5-8-1997 at 6.00 p.m. in front of the house of Abdul Aziz in Mauza Sandanawala within the area of Police Station Harnoli, District Mianwali while Kausar Mahboob petitioner was armed with double barrel 12 bore gun. Kausar Mahboob petitioner-accused raised the Lalkara that he would teach him (Safdar injured) a lesson for insulting him and abruptly fired twice at Safdar which hit his upper leg, thigh and knee joint. Safdar fell down. Dost Muhammad complainant, Sher Muhammad and Fateh Muhammad P.Ws. saw the occurrence. Kausar Mahboob petitioner succeeded in making good his escape. Dost Muhammad complainant, father of Safdar, got recorded F.I.R. No.100 dated 6-8-1997 at 8-30 p.m. at Police Station Hatnoli, District Mianwali under section 324/337-F(iii) of the Pakistan Penal Code.

2. Safdar injured was examined by Dr. Maqbool Mubarak C.M.O., District Headquarters Hospital, Mianwali on 5-8-1997 at 8.15 p.m. who found four entry wounds, five exit wounds and one grazing wound on the lateral upper leg, posterior upper leg and lateral thigh. The knee joint was also found to have been hit. In all ten injuries were found by the medical witness. The injured was taken to the emergency while feeling the pains and in severe discomfort when he was examined by the Medical Officer.

3. Kausar Mahboob petitioner-accused was arrested on 23-8-1997 who produced double barrel gun before the police on the said date which was taken into possession vide memo prepared by the Investigating Officer.

4. The bail application of Kausar Mahboob petitioner-accused has been dismissed by the learned Area Magistrate as well as by the learned Additional Session Judge with the reasoning that he is prima facie liable under section 324 Pakistan Penal Code in view of the injuries found on the person of Safdar injured which falls within the prohibitory clause. Kausar Mabboob has filed this petition before this 'Court for his admission to bail. 4-A. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. The main contention of the learned counsel for the petitioner is that in view of the seats of injuries section 324 of Pakistan Penal Code is not applicable and keeping in view the fact that on the medico legal report it is narrated that the injuries are Mutalahimah falling within the purview of section 337-F(iii) of Pakistan Penal Code, the petitioner is entitled to be admitted to bail as the maximum punishment for the aforesaid offence is three years as 'Tazir'. He added that in view of the seats of the injuries section 324 of the Pakistan Penal Code is not applicable and that even otherwise in case any injury falls under an independent penal section which in the instant case is section 337-F(iii), section 324 of the Pakistan Penal Code would not be applicable. In short he canvassed that the attraction of section 324 of Pakistan Penal Code is a question of further inquiry. On the contrary learned Counsel for the State laid the emphasis that in view of the motive and the role attributed to Kausar Mahboob petitioner-accused who fired twice on Safdar injured who received ten injuries with fire-arm, he is prima facie liable under section 324 of the Pakistan Penal Code as well as under section 337-F(iii), Pakistan Penal Code. He added that section 337-F(iii) Pakistan Penal Code is prima facie applicable in addition to section 324 of Pakistan Penal Code. Before making the analysis and appreciation of the dispute in hand I would like to reproduce as under section 324, Pakistan Penal Code for the sake of convenience so that the true picture emerges:-- "

324. Attempt to commit Qatl-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 in addition to the imprisonment and fine as aforesaid 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 Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years."

5. A perusal of the aforesaid section has made out that in case an accused is found liable under section 324 of the Pakistan Penal Code in addition to the imprisonment and fine as aforesaid provided under section 324 Pakistan Penal Code he shall also be liable to the punishment provided for the hurt caused. It specific section provided in Pakistan Penal Code for the hurt hat the specs, addition to section 324 of the Pakistan Penal Code means that the specific section provided in Pakistan Penal Code for the hurt caused shall be in - addition to section 324 of the Pakistan Penal Code simultaneously and section 324 of the Pakistan Penal Code shall not stand eclipsed. The provisions of section 324 of the Pakistan Penal Code initially at the time of the enforcement of the Qisas and Diyat Ordinance, 1990 -did not contain the words "in addition to the imprisonment and fine as aforesaid" after the words "the offender shall". As such the reasoning adopted by the learned counsel for Kausar Mahboob petitioner-accused has no blessing from the law of the land applicable at present. As such this contention is ignored.

6. Learned counsel for Kausar Mahboob petitioner argued that the attraction of section 324 of Pakistan Penal Code is a question of further inquiry as the injuries found on the person of Sardar victim-injured by the medical witness are on the upper legs and thighs which is not upper part of body and for that reason the petitioner is entitled to be admitted to bail. I do not agree with him. As rightly pointed out by the learned Counsel for the State the intention of the accused with respect to the murderous assault on the person of Safdar injured stands projected by the alleged fact that he tired twice at him. There is nothing on record to make out the fact that the intention of the assailant was to fire at the leg and thigh of the injured as he was not having the intention to effect the murderous assault on him. It was a chance that the-victim received the injuries on the thighs and the legs. The role attributed to the petitioner has made me to express the view that Kausar Mahboob prima faice made the murderous assault upon Safdar injured. It was next contended by the learned counsel for the petitioner that the thigh and the upper legs of a person are not a vital part of the body and the injuries received by the victim cannot be termed to be within the purview of the murderous assault. On the basis of the reasoning adopted by the learned State Counsel I have to express that under the Islamic Law with respect to the Anatomy we shall have to come out of the interpretation of vital and non vital parts of the body while taking up the cases of this nature registered after the firing is effected by the accused. The fact of the matter is that Kausar Mahboob I fired twice on the person of Safdar injured and both the shots hit him directly on the front portion of his body. It is important to note that it is a single accused case. The weapon of offence is also said to have been produced by Kausar Mahboob petitioner before the police. With my aforesaid reasoning I hold that Kausar Mahboob petitioner-accused is prima facie also liable under section 324 Pakistan Penal Code which falls within the Prohibitory Clause and. as such, is not entitled to be admitted to bail.

7. For what has been said above, I dismiss this bail application. H.B.T./K-58/L Application dismissed.