MUHAMMAD RIAZ vs MUHAMMAD SHAFIQ and anothers
This post-arrest bail application arose from F.I.R. No. 136 dated 23-2-2000 registered under Section 324/34, Pakistan Penal Code 1860, at Police Station Mirpur, Abbottabad. The accused-petitioner was directly charged with firing a single pistol shot that injured the complainant's left leg. His pre-arrest and earlier post-arrest bail applications were dismissed by the lower courts, whereas pre-arrest bail was granted to his co-accused father. The core legal questions before the Peshawar High Court were whether prima facie intention to commit Qatl-e-Amd under Section 324, PPC was established, whether the offense fell instead under Section 337-F(ii), PPC, and whether the petitioner was entitled to bail on the rule of consistency and lack of repetition of fire on a non-vital part. The High Court admitted the petitioner to bail, holding that the single fire directed at a non-vital organ without repetition when the victim was at his mercy negated prima facie intention to kill. Consequently, the applicability of Section 324 versus Section 337-F(ii), PPC and common intention remained subject to determination at trial.
- Whether firing a single shot at a non-vital part of the body without repetition when the victim is at the mercy of the accused prima facie negates an intention to commit Qatl-e-Amd under Section 324, Pakistan Penal Code 1860 for the purpose of granting bail?
- Whether the determination of whether an offense falls under Section 324 or Section 337-F(ii), Pakistan Penal Code 1860 can be deferred to trial, thereby justifying the grant of bail?
- Whether an accused is entitled to bail on the ground that the question of sharing common intention under Section 34, Pakistan Penal Code 1860 remains to be determined at trial after bail is confirmed for a co-accused?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
' Having been involved in case registered vide F.I.R. No, 136, dated 23-2-2000 under section -324/34, P.P.C. In Police Station Mirpur, District Abbottabad, the accused-petitioner and co-accused Muhammad Younas applied for bail before arrest in the Court of learned Sessions Judge, Abbottabad. Ad-interim pre-arrest bail in respect of co-accused Muhammad Younas was confirmed whereas the application of the petitioner was dismissed vide order dated 22-3-2000.
After his arrest he moved the Court of learned Judicial Magistrate, Abbottabad but his application was dismissed vide order dated 4-4-2000. Application filed before the learned Sessions Judge, Abbottabad was also dismissed vide order dated 29-4-2000. Petitioner has now moved this Court for his release on bail.
2. On 23-2-2000 Muhammad Shafique complainant lodged report charging accused-petitioner alongwith his father Muhammad Younas for attempting on his life with a pistol shot which caused him injury on his left leg.
3. I have heard Mr.Tehmas Khan Jadoon, Advocate, the learned counsel representing the petitioner and Mr.Sabir Hussain Tanoli, Advocate for State.
4. The respondent/complainant is absent despite service.
5. The main arguments of the learned counsel for the petitioner is that only one shot was fired by the accused-petitioner. The fires were not repeated though the victim was at his mercy at the relevant time because he had no intention to kill him. The injury is on the non-vital part of the body and has been declared simple. Co-accused Muhammad Younas has already been granted bail by the learned Sessions Judge, therefore, on the principle of consistency, the accused-petitioner is also entitled to bail.
6. On the other hand the learned counsel representing the State argued that the accused shared common intention and had fired at the victim in order to kill him. The injury is on the vital part of the body therefore, he is not entitled for the grant of bail.
7. No doubt the accused-petitioner has been charged directly in the F.I.R. And a specific role has been attributed to him but he has only been charged for firing one shot at the victim. He had not repeated the fire when the victim was completely at his mercy. Prima facie there appears no intention on the part of the accused-petitioner to cause death or Qatl-e-Amd of the victim. Injuries have been found on the left leg of the victim which is not vital part of the body. It was yet to be seen if the accused intended to kill the victim. The question of applicability of section 324 or that of 337-F (ii), P.P.C. Is still to be determined at the trial stage after' examination of the complainant and prosecution witnesses. Ad-interim bail of co-accused Muhammad Younas had already been confirmed by the learned Sessions Judge, vide order dated 22-3-2000. The question of sharing of common intention of the accused remains yet to be determined at trial. I, therefore, admit the accused-petitioner to bail provided he furnishes bail bond to the tune of Rs,1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Abbottabad, who shall see that the sureties are local, reliable and men of means.
Cited by 1 case
- MUHAMMAD AKBER vs THE STATE 2001 YLR 1535