2002 PLP 150 (MLD)

Mr. Mumtaz Ali Siddiqui learned counsel for the complainant also adopted the arguments of learned State counsel. I have gone through the F. I. R. and the other record placed by the learned counsel for the parties. I have also gone through the impugned order of learned Sessions Judge. In cited authority of 1994 SCMR 2051 it is observed by the Hon'ble apex Court that if gun injury is received by the victim which was located at his ankle which was not on the vital part of the body besides it was found to be simple one and it was yet to be seen if the accused intend to kill the victim. It was further held that at the most the offence would fall under section 337‑F(ii), P.P.C. which does not fall within the prohibitory clause of section 497, Cr.P.C. The Hon'ble apex Court while dilating upon the provision of section 307, P.P.C. (Old law) had compared section 324 P.P.C. of the new law. The learned counsel had read the both provisions of law and it would be beneficial to incorporate the same in extenso as under:‑‑ "Section 307, P.P.C. old law.

307. Attempt to murder.‑‑Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment 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 be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned." Section 324, P.P.C. of the new law: Section

324. 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 such act, the offender shall 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. The first part of the old and new sections provide imprisonment of either description for a. term which may extend to ten years and is also liable to fine. Under the old section 307, P.P.C. if hurt is caused to any person by such act the offender was liable to imprisonment for life or to such punishment as was mentioned hereinabove, but under the new law i.e. section 324, P.P.C. if hurt is caused to any person by such act the offender shall be liable to the punishment provided either description for hurt caused. It may be pertinent to observe that witness Muhammad Nawaz had received injury on his ankle which is not on the vital part of the body; besides it was found to be sample one. The injury thus at the most falls under the proviso section 337‑F (ii) of the new law (Criminal Law Second Amendment, Ordinance, XII of 1993), it read as under:‑‑ "337‑F. Punishment of ghayr‑jaifah.‑‑Whoever by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, causes: (i).............. (11) Badi' ah to any person, shall be liable to Daman and may also be punished with imprisonment of either description for a term which may extend to three years as Tazir." The said part of the above sub‑clause provides sentence liable to Daman and also punishment with imprisonment of either description for a term which may extend to three years as Ta'zir. The learned Judge of Peshawar High Court in case Karam Elahi v. The State (PLD 1992 Pesh. 111) had taken the view as under:‑‑ "307 Attempt to murder.‑‑Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten year,, and shall also be liable to fine; and if, hurt is caused any person by such act, the offender, shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned.

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 for 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 be liable to the punishment provided for the hurt caused." It would be seen that in Part I of the new section for the word `murder' Qatl‑i‑Amd has been used and for `death' `Qatl' has been substituted; the rest of the phrase is the same. In Part II of old section the offender was liable to life imprisonment for the hurt caused, whereas in the new section the offender shall be liable to punishment for the hurt caused, depending on the kind of hurt, the details of which have been given in other sections of the Ordinance." While considering the other citation of 1996 PCr.LJ 1881, the Hon'ble High Court Lahore cited PLD 1995 SC 34 and 1994 SCMR 2051 and it has been observed as under:‑‑ "Admittedly the injuries are on the non‑vital part of the body and have been declared simple by the Medical Officer. It has been held by the Hon'ble Supreme Court in number of authorities including PLD 1995 SC 34 and 1994 SCMR 2051 that: 5.497‑‑‑Penal Code (XLV of 1806), S. 337‑F (11)(as amended by Criminal Law (Second Amendment Ordinance (XII of 1993)‑‑ Bail‑‑‑Gun injury received by the victim was on his ankle which was not on the vital part of the body besides it was found to be simple one and it was yet to be seen if the accused intended to kill the victim. Injury. Held at the most fell under the provision of section 337‑F (ii), P.P..C. (as amended) and did not fall within the prohibitory clause of 5.497, Cr.P.C. in the circumstances."' Similar views have been taken in 1995 P.Cr.LJ 1345. It seems to me that injuries sustained by injured Allah Jiwayo and Khadim Hussain are on non‑vital part of the body and it is yet to be seen if the applicants/accused intended to kill the victim and by respectfully relying upon the above cases I am of the view that the applicants/accused are entitled for the grant of bail as it requires further enquiry in respect of their guilt. Resultantly the bail is granted to the applicants/accused and they may be released on bail provided they furnish surety in the sum of Rs.1,00,000 (Rupees one lac) each and P.R. Bond in the like amount to the satisfaction of the trial Court. N.H.Q./A‑262/K Bail allowed.