1994 P Cr (PLP)

AA. Muhammadally, Addl. A.-G. for the State. The applicant Ali Gul son of Ghulam Hussain is required in F.I.R. Crime No.23/1993 registered at Police Station Mirokhan for offences under section 324, Qisas and Diyat Ordinance read with sections 148, 149, P.P.C. and 13-D, Arms Ordinance, 1965. The case of the prosecution is that complainant Muhammad Bux lodged report at Police Station Mirokhan on 20-2-1993 in which he stated that on the said date in the morning, he alongwith his son Din Muhammad went towards their land and started irrigating the complainant's wheat crop when at about 7 a.m. applicant Ali Gul armed with a gun, alongwith co-accused Ali Sher, Ali Hyder, Pathan and Mumtaz all armed with hatchets came there. Ali Gul told the complainant that he had asked him not to flow water in his land from the said watercourse but in spite of that he has taken the water from the same watercourse. Thereafter Ali Gul fired at his son Din Muhammad which hit him on his face. The complainant raised cries which attracted P.Ws. Jume and Shabir while the accused persons managed to run away. Thereafter the complainant lodged the report. During the course of investigation the applicant Ali Gul was arrested by the police on 13-3-1993 and also recovered his licensed gun from him. The applicant had applied for bail before the lower Court but the same was rejected, as such, he has preferred the present bail application. I have heard Mr. Fareed Ahmed Dayo learned counsel for the applicant and so also Mr. AA. Muhammadally, learned Additional Advocate General. The latter did not oppose this bail application. It may be mentioned that the applicant was in custody when this bail application had come up before me at Sukkur and vide order, dated 27-9-1993 interim bail was granted to the applicant as it was felt that the police papers were deliberately not being called. For allowing the learned AA.-G. t6 call the police papers, the case was adjourned to 9-5-1993, 27-6-1993, 16-9-1993, 19-9-1993 and 27-9-1993. The interim bail was granted by me, therefore, this bail application has now come up for hearing before me. The learned counsel for the applicant submitted that as per the F.I.R. 5 accused persons were named but during the course of investigation, the police has left off four accused persons and their names have been placed in column No.2 of the challan. He has further submitted that the incident has taken place all of a sudden, it was not pre-planned and occurred at the spur of the moment due to dispute over rotation of water. Apart from it, it was pointed out that the fire-arm injury caused on the cheek of Din Muhammad was not on account of any direct hit, but it was a stray pellet which hit him and if the intention of the accused was to kill, the complainant party was completely at the mercy of the accused and conveniently greater harm could have been caused. He has also pointed out that bail application of the present application was rejected as the trial Court had already rejected the bail application of co accused Ali Hyder. I have considered the points raised by the learned counsel and I have also gone through the material available on record. Admittedly there seems to be a dispute between the parties over rotation of flow of water. Allegation against the accused party is that the present applicant Ali Gul was armed with fire-arm while the rest were armed with hatchets. One injury has been caused to Din Muhammad, 1 c.m. in diameter and has fractured one tooth. The contention of the learned counsel is correct that if the shot had been fired from such a close range as mentioned in the F.I.R. in that event, had it been a direct hit, the injury would have been far more serious. This being the position the possibility cannot be ruled out that the injury caused to Din Muhammad was on account of a stray pellet. The medical certificate also shows recovery of one pellet. Apart from it I may also observe that the medical report of applicant Din Muhammad does not indicate that one pellet which has been secured by the Medical Officer was imbedded in the mouth of the said Din Muhammad. A fractured tooth and one distorted pellet are said to have been recovered by the doctor and handed over to the police, but there is no explanation as to why the fractured tooth and the pellet were retained by the injured in his mouth till the time he was medically examined. There can be no denial of the fact that the applicant had no intention to kill Din Muhammad. As already mentioned the injury is by means of one single pellet whereas a cartridge contains a number of pellets and therefore, it could not be the result of a direct hit. If the E intention of the application was to kill, there was nothing to prevent him from doing so. In the circumstances I am of view that the case of the applicant requires further inquiry within the meaning of section 497(2), Cr.P.C. In the result interim bail granted to the applicant is hereby confirmed on the same terms and conditions. N.H.Q./A-1464/K Bail granted.