MULAZAM HUSSAIN Versus NAZIR AHMAD

ORDER

The petitioners have applied for pre-arrest bail in a case registered against them vide F.I.R. No.176, dated 2-7-1994 under section 324/34, P.P.C. registered with Police Station Miana Gondal.

2. Briefly the facts of the case are that on 1-7-1994 at about 3-00 p.m. the complainant Nazir Ahmed was going alongwith his son Mukhtar Ahmed to his house after saying Jumma prayer and when they reached near the Dera of Khalid in Chak No.48 the petitioners alongwith two other persons appeared out of nearby bamboo field. Mulazam Hussain petitioner was armed with .12 bore gun whereas Khalid Mahmood petitioner was armed with rifle 7 mm alongwith co-accused who were variously armed and they launched murderous assault on them on the Lalkara of Bashir Ahmed co-accused. Mulazam Hussain petitioner made a fire-arm shot from his gun which hit on the left leg of Mukhtar Ahmed whereas Khalid Mahmood petitioner also fired at Mumtaz Ahmed with his rifle which hit him on his right arm. Azam co-accused is also attributed fire-arm injury which landed on the right leg of injured Mumtaz Ahmed.

The learned counsel for the petitioners has sought bail on the ground that the petitioners have been involved in this case in a mala fide manner out of ulterior motives, further that there is delay of 18 hours and the explanation given needs consideration; the injuries attributed to the petitioners at the most attract provisions of section 337-F(v), P.P.C. and injuries being on non-vital part are not dangerous to life and lastly that the learned Additional Sessions Judge erred in cancelling the concession of bail granted to the petitioners by the learned Magistrate Section 30.

4. The learned counsel for the complainant as well as learned counsel for the State have opposed the grant of bail.

5. I have considered the arguments of the parties; it is true that injuries to injured are not on the vital part of the body and have not been declared by the doctor as dangerous to life. The fact that the injured received seven fire arm injuries according to medico-legal report; according to which injuries Nos.1, 5 and 6 are grievous in nature and are bone deep injuries; the injured Mumtaz Ahmad has been operated upon three times and there is apprehension as contended by the learned counsel for the complainant as well as the State counsel that the injured may if not properly medically treated; his right leg and right arm be crippled within space of time.

6. The learned trial Judge while rejecting the bail application on 8-11-1994 observed injuries Nos.1, 5 and 6 are grievous in nature and are bone deep injuries. Keeping in view the nature of injuries by fire-arms, at this stage, it could not be said that the attack was not murderous. Therefore, this case cannot be taken out of the prohibitory clause of section 497 of Cr.P.C.; while granting post-arrest bail to the petitioners vide his order, dated 1-2-1995 the same learned Magistrate observed that there is no injury on the vital part of his body. The injured has already been discharged from the hospital and the accused petitioners are in jail for the last 5 months. The co-accused Muhammad Azam who has been attributed similar role has already been admitted to bail by the learned Additional Sessions Judge, Mandi Bahaud Din. In view of the above-stated facts, I think the case of the accused petitioner is also at par with that of the co-accused who has already been admitted to bail. It is worth to mention that the learned Additional Sessions Judge granted bail to co-accused Bashir Ahmad on the grounds firstly that the co-accused is attributed only Lalkara and secondly is suffering from Hernia disease and needs hospitalisation for operation and medical treatment as per medical report of Medical Board constituted for his medical examination; while granted bail to the co-accused Muhammad Azam and observed that Muhammad Azam fire-arm shot which hit the injured on his leg which is not a vital part of the body and falls under section 337-F(v), P.P.C. and the offence does not fall within the prohibitory clause.

7. The learned Additional Sessions Judge has rightly cancelled the bail granted to the petitioners by the learned Magistrate Section 30 by observing the after arrest bail petition of the respondent (now petitioners) which was dismissed on 8-11-1994 by the lower Court on merits was on the same grounds which was accepted by the learned Magistrate Section 30, Mandi Baha-ud-Din vide order, dated 1-2-1995. Therefore, no fresh ground was available to the respondents before the learned Magistrate Section 30, Mandi Baha-ud-Din at that time.

8. This bail application has a chequered history; that the accused/petitioners moved pre-arrest bail which was dismissed on 17-8-1994 by the learned Sessions Judge; the post-arrest bail moved before the learned Magistrate was rejected on 30-8-1994; again on 19-9-1994 by the learned Sessions Judge; as withdrawn; the learned Magistrate again rejected the bail application of the petitioners on 8-11-1994 while the co-accused Bashir Ahmad and others were granted bail by the learned Sessions Judge on 15-11-1994 for the reasons aforementioned; the petitioners again applied for bail which was accepted and the petitioners were released on bail by the learned Magistrate Section 30 vide order, dated 1-2-1995; the learned Sessions Judge vide impugned order, dated 12-3-1995 cancelled the bail granted to the petitioners on the application of the complainant under section 497(5), Cr.P.C. hence this petition.

9. The contention of learned counsel that the petitioners have been involved innocently in a mala fide manner and one Syed Taqi Shah is the actual culprit is without force as this plea has not been taken seriously by the petitioners neither before the lower Courts at bail stage nor before the Investigating Officer; the accused have been challaned; at this stage the Court cannot go into deeper appreciation of either prosecution or defence as the same is bound to affect one or the other party at trial; similarly the contention that the parties to case reside within the jurisdiction of Sargodha while case has been registered in District Mandi Baha-ud-Din and medical certificate has been got from Bahra situated in District Sargodha is nothing but an effort to mislead the Court; which is not expected from the learned counsel while assisting the Court to decide the case on merits.

10. The contention of learned counsel that the offence falls under section 337-F(v) as per medico-legal report and relied upon the case Muhammad Afsar v. The State 1994 SCMR 2051; with due respect to their Lordships is not applicable to the facts of the case in hand; as in the case relied upon by the learned counsel for the petitioners; in fact the case under consideration before their Lordships fell in second part of section 324 of the Criminal Law Amended Act, 1991 while in case in hand the facts are different.

11. It is true that at the stage of deciding the bail application, the Court is not to enter upon a detailed appreciation and examination of evidence; but, as observed by their Lordships in case Muhammad Hanif v. Manzoor and others 1982 SCMR 153; it is clear that the question cannot be decided in vacuum, and the Court has to look at the material available when the bail is applied for.

12. Now, in the case in hand; the result of medico-legal report examination of the injured is available; the injured received 7 injuries; of which three injuries are of grievous nature; thrice the injured has been operated upon; because of reckless firing by the petitioners; the fire-arm mainly used is 7 mm rifle and the injured has still not recovered and as already observed if not properly treated; may become a crippled person; reckless firing by the petitioners show their intention and to my mind the case falls under Part I of section 324, P.P.C. and is covered by the prohibitory clause of section 497, Cr.P.C.

13. I am of the view, there is sufficient material on the record to connect the petitioners with the commission of this offence which falls within the prohibitory clause of section 497, Cr.P.C. I am not inclined to exercise my discretion and there is no justification for interference in the order passed by the learned Additional Sessions Judge, Mandi Baha-ud-Din. Order accordingly.

N.H.Q./M-2126/L

Bail refused.