MUHAMMAD USMAN Versus ZAFARULLAH KHAN

ORDER

On 27-8-1993 at i1-25 p.m. a case under section 324/109, P.P.C. was registered at Police Station Daud Khel, District Mianwali against Zafarullah Khan and Tufail Khan accused at the instance of Muhammad Usman complainant. It was alleged that on the same day at about 6-30 p.m. Zafrullh Khan accused while armed with a .30 bore pistol launched a murderous assault on Ghulam Muhammad alias Bhutto and caused him fire-arm injury. It was alleged that Zafarullah Khan accused had committed the crime on the abetment of his elder brother Tufail Khan. The motive for the occurrence was stated to be a dispute between the parties over the payment of some money.

2. On 31-8-1993 Zafrullah accused was arrested. He was admitted to bail by the learned Additional Sessions Judge, Mianwali vide order, dated 10-2-1994. Muhammad Usman complainant has moved the instant petition against Zafrullah accused for the cancellation of his bail, which I propose to dispose of by this judgment.

3. I have heard the parties' learned counsel and have also gone through the record.

4. Medico-legal report reveals that Ghulam Muhammad alias Bhutto P.W. had suffered a fire-arm injury on his right flank. The said injury had its exit wound on his abdomen.

5. Rab Nawaz Khan P.W. who at the time of the occurrence was sitting on a motorcycle with Ghulam Muhammad aforesaid also received a fire-arm injury on his right wrist.

6. Learned Additional Sessions Judge had ordered the release of Zafrullah Khan accused on bail on the following grounds:--

(1) that the trial of the accused had been delayed;

(2) that the injured had remained in the hospital for only one day; and

(3) that the accused had no intention to kill Ghulam Muhammad P.W. as he had fired a solitary shot at him.

7. Learned counsel for the complainant has contended that the grounds on which the accused had been enlarged on bail never existed and that the learned Additional Sessions Judge had grossly misread the record. He further maintained that the offence charged against the accused was punishable with 10 years' imprisonment which fell within the purview of prohibitory clause of section 497, Cr.P.C. and thus the accused was not entitled to the grant of bail.

8. Learned counsel for the State supported the petition for the cancellation of bail and maintained that the impugned order of bail passed by the learned Additional Sessions Judge was not sustainable.

9. Conversely, learned counsel for the accused defended the impugned order and maintained that it was a fit case for the grant of bail and the learned Additional Sessions Judge was perfectly justified in admitting the accused to bail.

10. Perusal of the bed-head ticket of Ghulam Muhammad injured P.W. shows that he was admitted to the hospital on 27-8-1993 and was discharged on 30-8-1993. He was re-admitted on the same day and was then discharged on 31-8-1993. It means that he had remained admitted in the hospital from 27th to 31st August, 1993. Learned Additional Sessions Judge was, therefore, wrong in holding that the injured P.W, had remained in the hospital only for one day. The duration of the stay of the injured P.W. in the hospital is wholly irrelevant in the present case. The injury which the accused had caused to him was Jurh Jaifah which fell within the mischief of section 337-D, P.P.C. and the same was punishable with 10 years' imprisonment. It means the offence charged against the accused fell within the prohibitory clause of section 497, Cr.P.C. and bail was not to be granted in routine. The injury suffered by Ghulam Muhammad P.W. was located on the vital part of his body. The occurrence was witnessed by Muhammad Usman and Dilasa Khan besides the two injured P.Ws. The ocular evidence coupled with the medical evidence sufficiently connected Zafarullah Khan accused with the offence charged against him. The accused has been formally charged and I do not think there is any unreasonable delay in the holding of trial. In these circumstances it was-not a fit case for bail. Learned Additional Sessions Judge, it appears had not properly applied his mind to the present case.,

11. Today the accused is absent and his learned counsel requests for adjournment. He has sent a medical certificate to the effect that he was suffering from "RTI". His learned counsel was unable to explain as to what was that disease. This application for cancellation of bail can conveniently be decided in the absence of the accused and therefore, request for adjournment is declined.

12. In view of what has been stated above I am of the opinion that in the present case bail was allowed to the accused on grounds which either did not exist or were not recognised in law. Consequently, the order of the learned E Additional Sessions Judge, dated 10-2-1994 whereby Zafrullah Khan accused was admitted to bail is set aside and the bail of the accused is cancelled. He shall be taken into custody and sent to the judicial lock-up. Learned trial Court is directed to dispose of the case expeditiously.

N.H.Q./M-1603/L Bail cancelled.