ABDUL MAJEED and another vs THE STATE

ORDER

' ABDUR REHMAN FARUQ PIRZADA, J.-Applicants seek bail in the case vide Crime No, 114/2008 P.S. Ubauro for offence under sections 324, 148, 149, 147, 114, 337-H (ii), P.P.C.

2. As per F.I.R. There was previous dispute between the complainant party and accused persons over lands. On 16-5-2008 at about 2-00 p.m. 84 accused persons being armed with Kalashnikovs, rifles, guns and lathies allegedly attacked the complainant party. On the instigation of coaccused Muhammad Nawaz, applicant Abdul Majeed fired with gun upon P.W. Abdul Aziz, thereby causing an injury on his left leg, whereas applicant Shah Nawaz fired with his rifle on P.W. Abdul Aziz, thereby causing an injury on his right leg.

3. Learned counsel for applicants has submitted that the applicants are only assigned the role of causing injuries on the non-vital parts of the body of the injured person. As per medical certificate, the injuries on the legs of injured Abdul Aziz were declared as Ghayr Jaifah Mutlahima being covered by section 337-F(iii) and Ghayr Jaifah Munaqila being covered by section 337-F(vi), respectively. Learned counsel has contended that both the said injuries as per medical certificate, do not fall under the offences covered by prohibitory clause of the section 497, Cr.P.C. He has argued that section 324, P.P.C. Will not be applicable in the circumstances of the case, as the injuries were suffered by only one injured person on the non-vital parts of his body. The applicants did not try to repeat their fires even after they had found that the injured had suffered injuries on his legs only. He has further submitted that a large number of accused viz 84 in number, being armed with different fire arms had allegedly attacked the complainant party, and all of them could have easily murdered any person from the complainant side, had they ever intended to do so.

Learned counsel also pointed out that no blood was found at Wardat, as per mashirnama, which may suggest that the place of incident as well as the manner in which the alleged offence was committed, may be different from the facts as given in F.I.R. Learned counsel has placed reliance on the case-law as reported in 1999 PCr.LJ 140 (Karachi). 2002 M LD 150 (Karachi) and 2004 M LD 1910.

4. Learned A.A.G. Has opposed the bail application, while submitting that the applicants are named in the F.I.R, and assigned the specific role of firing upon and injuring P.W. Abdul Aziz.

5. I have considered the above contentions raised by learned counsel for applicants and learned A.A-G, respectively. As per prosecution case 84 persons allegedly attacked the complainant party, with intention to commit their murders. All the persons are said to have been armed with deadly fire-arms and other weapons. So far as the applicability of section 324, P.P.C. Is concerned, it has to be judged in the background of the number of the accused persons, the weapons which they were carrying as well as the opportunity available to them to complete the intended offence. In the given circumstances, 84 persons being armed with deadly weapons, could have easily done to death the complainant as well as prosecution witnesses, in case they had any such intention.

There were no such circumstances which could have prevented them from completing the offence, if they really intended to commit the murder. It is significant to note that even after finding that P.W. Abdul Aziz had sustained injuries on his legs only, neither the applicants, repeated their fires, nor the remaining 82 accused persons tried to fire upon the complainant party or to kill them by any other means. The injuries suffered by applicants are on non vital parts of the body. Prima facie, as a matter of tentative assessment, it may not be asserted that section 324, P.P.C. Would apply in .Present case. So far as the offences under section 337-F (iii), P.P.C. And section 337-F(vi), P.P.C. Are concerned, they are not covered by the prohibitory clause of section 497, Cr.P.C.

6. I have gone through the above case-law cited by learned counsel for applicants. In the case of Saleem Khan v. The State (1999 PCr.LJ ) 140), the bail was granted to accused persons in a case under sections 324, 327-F (ii) and 337-F (yi), when name of accused appeared in F.I.R and specific role of causing injuries to injured had also been assigned to him in F.I.R., but all accused persons including accused, though were alleged to be armed with pistols, but none of them had repeated their fires, when complainant and his injured brother were completely at their mercy; it was held that prima facie there appeared to intention on the part of accused to cause death or Qatl-i-Amd of either complainant or his brother and that injuries on person of injured were on non vital part of his body, which also prima facie showed lack of intention of accused to cause Qatl-i- Amd.

7. In the case of Allah Ditto ancj another v. The State (2002 M LD 150), bail was granted in a case of attempted murder, when the prosecution witnesses had sustained injuries on non-vital parts of their bodies and it was yet to be determined if the accused intended to kill them.

8. Respectfully reliance may be placed on the case as reported in PLD 1989 SC 347, in which pre- arrest bail was granted to the accused, who had allegedly caused fire-arm injury on the leg of prosecution witness.

9. The case as reported in 1987 PCr.LJ 1088 may also be referred to, in which case bail before arrest was granted to accused, who had allegedly caused fire-arm injury on the leg of prosecution witness.

10. In view of the given circumstances, and while placing implicit reliance on the above cited authorities of law, this bail application is allowed, and the applicants may be released on bail subject to their furnishing solvent sureties in the sum of Rs,50,000 and P.R. Bonds in the like amount to the satisfaction of learned trial Court.