1998 P Cr (PLP)

BASHARAT AHMAD SHAIKH, J.‑‑‑--A criminal case under sections 324, 337‑A and 34, A.P.C. was registered against the appellant and three other persons, namely, Sarfraz, Mehtab and Tassadaq at Police Station Dadyal on 25th of August, 1996. The petitioner applied for bail before arrest in the Zilaee Adalat. Interim bail was initially allowed but confirmation was refused on 8th of October, 1996. The petitioner again applied for bail on 17th of October, 1996 when one challan had been presented before the Zilaee Adalat. The application was rejected on 30th of November. The petitioner then moved to Shariat Court by filing a revision petition which has also been dismissed. He has now filed this appeal which lies as to read under the Islami Tazeerati Qawaneen Nifaz Act.

2. It is stated in the First Information Report that at 7‑00 p.m. on 25th of August, 1996 a tractor belonging to Mazhar Iqbal was standing at the crossing of Siakh Bathar road when he took his seat in the tractor accused persons Sarfraz, armed with .12 bore double‑barrel gun, Muhammad Arif, appellant, armed with .30 bore pistol, Mehtab also armed with .30 bore pistol and Tassadaq, who was carrying a Bailcha, came to the place of occurrence in the car of Muhammad Irfan. The allegation is that they started firing on Mazhar Iqbal. Injuries were caused by the Bailcha. Muhammad Ilyas and others who were present on the spot raised hue and cry and then took the injured person to the hospital as to the motive of the crime the prosecution case is that there is an armed quarrel for which the accused persons nursed enmity against Mazhar Iqbal. When challan was presented section 13/20/65 (Arms Act) was also added on account of recovery of an. unlicensed pistol from the appellant.

3. The bail application of the appellant was rejected by the trial Court on the ground that there was an allegation against the appellant that he used the fire arm to cause injuries on the person of Mazhar Iqbal. The trial Court also observed that the case was covered by the prohibition clause. In the Shariat Court it was argued that it was a case of further inquiry but this plea does not find favour with the learned Judge in view of the facts that the appellant was duly nominated in the First Information Report. The prosecution case, was supported by eye‑witnesses and also corroborated by medico‑legal report and the evidence of recovery as a result of which challan had been filed before the trial Court.

4. The view taken by the trial Court that the case fell within the prohibition clause was. vehemently challenged before us by Ch. Muhammad Anwar, the learned counsel for the appellant. The most serious section applied in the present case is 324 of the Penal Code (attempt to commit Qatl‑e‑Amd). The section lays down that whoever commits an act of Qatl‑e‑Amd he should be punished with imprisonment of a term which may exceed ten years. It is also laid down that if hurt is caused to any person by his act the offender shall be liable to the punishment provided for the hurt caused. Since hurt was caused in the present case the prosecution has also added section 337‑A of the Penal Code. Section 337‑A consists of six parts and different punishment is provided in each part. The maximum sentence is in clause (vi) wherein maximum sentence is fourteen years. It was contended by Ch. Muhammad Anwar that if an offence carries punishment of death or imprisonment of life bail is prohibited by subsection (i) of section

497. He pleaded that the maximum punishment provided in section 337‑A is fourteen years which is not applicable to the present cause but assuming that it is applicable it is not covered by the prohibition clause. The elaboration of the learned counsel is correct. Under section 497 it is provided that a person shall not be released on bail if there appears reasonable grounds for believing that he has been guilty of offence punishable for death or imprisonment of life. It is thus, clear that the case of the appellant does not fall in the prohibition clause. It appears that the trial Court by inadvertence read section 497 as it is enforced in Pakistan where imprisonment for ten years has also been included in the prohibition clause.

5. However, the fact that the case against the appellant does not fall in the prohibition clause of section 497 does not make-out the case for grant of bail. The allegation against the appellant is that he, alongwith other persons, was lying in ambush. He used fire‑arm thereby causing injury on the person of Mazhar Iqbal. The trial Court as well as the Shariat Court have rejected the applications of the appellant for being enlarged on bail and while doing so did not exercise discretion arbitrarily but passed orders for refusal of bail keeping in view, the circumstances of the case, including the gravity of the allegations against the appellant. We, therefore, decline to interfere.

6. It, however, seems to be in the interest of justice to allow the appellant to file a fresh bail application when the statements of eye‑witnesses have been recorded. The appeal is, therefore, dismissed. N.H.Q./233/SC(AJ&K) Bail refused.