1994 P Cr (PLP)

Muhammad Sarfraz alias Muhammad Sarwar alias Toni respondent is an accused in case F.I.R. No. 456 registered al Police Station Chung, Lahore originally registered under section 307, P.P.C. on 17-10-1990 on the statement of Muhammad Bashir complainant/petitioner.

2. The allegations against the respondent, as embodied in the FIR, are that on 17-10-1990 at 7-30 p.m. when Muhammad Bashir complainant petitioner was proceeding from his rented out shop towards his house at village Khanpur, he came across the respondent on the way. The respondent, seeing the petitioner, challenged him and simultaneously fired al him with a carbine. The pellets so fired hit the petitioner on his chest and the tip of ring finger. He raised alarm, attracting his cousin Muhammad Shaft son of Khushi Muhammad and his brother Muhammad Shabbir. Seeing them come, the respondent ran away. The motive for the crime was a dispute between the petitioner and respondent's father over the draining out of the sullage water of their houses.

3. The matter was reported to the police by Muhammad Bashir petitioner himself and the case was registered in the manner aforesaid. During the investigation the respondent was arrested on 28-10-1990, The petitioner first moved the trial Magistrate for bail and on the rejection of his bail application by him he took recourse to the Court of Session. His bail application was dealt with by a learned Additional Sessions Judge at Lahore. Before him he also remained unsuccessful as his bail application was rejected on 3-1-1991 but when he approached the learned Additional Sessions Judge for the second time, he was granted bail vide order dated 26-2-1991, the one now under challenge. Aggrieved by this order, the complainant-petitioner has come to this Court for seeking the cancellation of the bail of his opponent.

4. Since the main grouse of the learned counsel for the petitioner at the time of motion hearing was that the learned Additional Sessions Judge first rejected the bail application of the respondent on 3-1-1991 and then accepted his bail application on 26-2-1991 on the same facts, he was asked to let this Court know as how it happened.

5. The learned Additional Sessions Judge, in his comments, dated 24-4-1991 has, by and large,, taken up the position that in the first bail application moved by the respondent, section 307, P.P.C. was mentioned so he declined bail in view of the provisions of that section but in the second bail application the provisions of the newly-enacted law of Qisas and Diyat Ordinance, 1991 (wrongly described, as the correct nomenclature is Criminal Law (Second Amendment;) Ordinance, 1990, which had meanwhile come into force were invoked, and he granted bail to the respondent in the light of the new law of hurt so enacted, despite the fact that no fresh material had been brought on the record. He has also observed that since section 369, Cr.P.C. was not applicable so far as the decisions in the bail applications are concerned, he believed himself to be empowered to allow the subsequent bail application pursuant to the new law.

6. It is argued on behalf of the petitioner that even during the course of argument on the first bail application before the learned Additional Sessions judge, the application of substituted section 324, P.P.C. was argued and this fact is clear from the order of the Magistrate, dated 14-11-1990, which was under discussion, because he too had discussed the substituted section 324, P.P.C. (old section 307, P.P.C.) besides section 337(c) and 337 (f) but the learned Additional Sessions Judge did not incorporate this fact in his first bail order.

7. With reference to the State through Advocate-General, N: W.F.P. v. Zubair and 4 others P L D 1986 SC 173, the learned counsel contends that the subsequent bail application to the same Court on the same facts was not maintainable and the learned Additional Sessions Judge was not justified in granting bail to the respondent. This very view, according to the learned counsel, was taken in Mukhtar Ahmad v. Muhammad Khurshid Kamal 1991 P Cr. L J Note 81 at-p.51.

8. It is argued that the purpose behind the Islamic Law is to give maximum protection to the human life and in re-enacting section 324 by Ordinance VII of 1990, the Legislature had in fact made the offence of attempted murder more severe instead of making it less severe, as erroneously held by the learned Additional Sessions Judge.

9. The learned Assistant Advocate-General assisted by the learned State Counsel who has been especially asked to assist this Court as a question of interpretation of new Shariat Law has cropped up, holds the same view as expressed by the learned counsel for the petitioner because, according to him, the second portion of the substituted section 324, P.P.C. enjoins the awarding of Qisas which is obviously a severer punishment as compared to the sentence for imprisonment of life and fine. However, he is of the opinion that once the punishment of Qisas is awarded then the offender cannot be awarded sentence of imprisonment which can be awarded only if the Qisas punishment is inexecutable. Anyhow, he supports the application of the petitioner for the cancellation of bail.

10. The application has been opposed on behalf of the respondent. His learned counsel submits that the first portion of the substituted section 324, P.P.C. is the reproduction of the first portion of the repealed section 307, P.P.C. but in the second portion thereof a different concept has been incorporated. In his opinion, if the act of an offender comes within the ambit of Qatl-i-amad' and during the course of occurrence he also causes a hurt for which executable punishment of Qisas is awarded, then in that case he shall be liable only for causing hurt and not for Qatl-i-amd and if the Qisas for the hurt so caused is not executable then he can, at the most, be sentenced to imprisonment for seven years besides compensation (Arsh) as compared to imprisonment for life or an imprisonment extending up to 10 years awardable under the repealed section 307, P.P.C. He submits that if the offender is punished for hurt according to the substituted section 324, P.P.C. then his case does not fall within the prohibitory law of bail as maximum sentence awardable is seven years.

11. On merits he submits that the case was originally registered against one Muhammad Sarfraz despite the fact that the parties were almost immediate neighbours but later his name was substituted by Muhammad Sarfraz alias Muhammad Sarwar alias Toni. According to the learned counsel, the petitioner suffered four injuries, one injury on the chest having been caused by a blunt weapon, second injury was also located on the chest in form of a D shaped wound, which could be described as simple as it was superficial, while third and fourth injuries were on the tip of the ring finger, one being the entry wound and the other exit wound with a fracture. Finally, it is urged that the ; R challan has been submitted, charge has been framed and the prosecution '' evidence has been summoned but it is not being produced and this is not the stage for the cancellation of bail. He has cited Muhammad Ismail v. Muhammad Rafique and another P L D 1989 SC,585 in support of his contention.

12. To clarify the nature of injury No. 2 located on chest of the petitioner and the kind of weapon used, Dr. Ahmed Ishaque, Medical Officer has been summoned. He states that it was a "D" shaped wound on front of the chest and the petitioner, according to him, was referred to the Mayo Hospital for the verification of the nature of the injury and it was opined by the Registrar of the Surgical Ward of Mayo Hospital, Lahore, vide his opinion dated 12-11-1990, that this injury was caused by a fire-arm as a foreign body had been recovered, and it was a grievous injury. From the chest injury and the kind of weapon used it is obvious that the respondent's intention was apparently to kill the petitioner A and he prima facie attempted to commit Qatl-i-amd, punishable under the substituted section 324, P.P.C. which was previously punishable under section 307, P.P.C. In the bail order, dated 3-1-1991, while rejecting the first bail application of the respondent, the learned Additional Sessions Judge had clearly held that the offence fell within the purview of section 307, P.P.C. but, after a month, since he was bent upon accepting his second bail application, presumably for some extraneous consideration, he, knowing fully well that the old section 307, P.P.C. had been substituted by section 324, P.P.C. by the amending Ordinance No. I of 1991, purposely shut his eyes from looking at the new provision of law and wrongly applying section 337-F, clause V and clause I, bailed him out for no justification whatsoever There is no substance in the contention of the respondent's counsel that newly-enacted section 324, P.P.C. B is less serious than the repealed section 307, P.P.C. rather it seems-to be more serious. The parties being immediate neighbours, there could be no doubt in respondent's identity, whatever may be his description in the F.I.R. Since only B the charge has been framed against the respondent and no prosecution witness 1 has been examined, this is no ground for saving the impugned order.

13. In view of the above, the impugned bail order, dated 26-2-1991 is C recalled and the respondent, after having been taken into custody, should be I sent to the lock-up. N.H.Q./M-1656/L Bail cancelled.