DILAWAR KHAN vs THE STATE and another
This matter comes before the Peshawar High Court through a bail petition filed by Dilawar Khan, who was charged under sections 324 and 34 of the Pakistan Penal Code 1860 vide F.I.R. No. 128 dated 19th May 2001 registered at Police Station Pezu for firing at the complainant. The core legal question was whether the petitioner was entitled to post-arrest bail considering the single, simple injury on a non-vital part of the body and the absence of repeated fire. The Court held that the case called for further inquiry regarding the intention to cause death, thereby making it a fit case for the grant of bail. The key principle laid down is that where an injury is simple, located on a non-vital part of the body, and no repeated fire is made despite opportunity, the question of intent requires further inquiry, justifying the release of the accused on bail as pre-trial incarceration should not be used as a punishment.
- Whether an accused is entitled to post-arrest bail when a single firearm injury is simple and located on a non-vital part of the body?
- Does the absence of repeated firing by the accused despite having the opportunity create a case for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Whether the use of a deadly weapon alone is sufficient to establish the intention to kill regardless of the nature and seat of the injury for the purpose of bail?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
' The petitioner herein who is :barged in a case registered against him ender sections 324/34, P.P.C.
Vide F.I.R. No,128 dated 19th May, 2001, Police Station Pezu for having effectively fired at the complainant, when failed to get the concession of bail from the lower forum, moved this Court for the same.
2. The learned counsel for the petitioner contended that according to medico-legal report there is only one firearm entry wound on the person of the complainant, which is simple in nature; that the petitioner did not repeat fire in spite of the fact that there was none to restrain him and that in view of the nature and seat of the injury it cannot be said with any amount of certainty that the petitioner intended the death of the complainant.
3. As against that the learned Deputy Advocate-General assisted by the counsel for the complainant argued that the use of deadly weapon alone would leave no doubt as to the intention on the part of the petitioner to kill the complainant regardless altogether of the nature and seat of the injury, more so when there was a motive on the part of the petitioner to kill the complainant.
4. I have carefully gone through the record and anxiously considered the arguments of the learned counsel for the parties.
5. A look at the medico-legal report would show that a single pellet pierced through the right thigh of the complainant by causing an entry as well as exit wound besides a bruise whose cause is, so far, unascertainable. While a perusal of the other data so far available would reveal that the occurrence was over, without the intervention of anybody. The petitioner did not repeat fire at the complainant notwithstanding the fact that the latter was at the mercy of the former. When viewed in this context and background, the question whether the petitioner intended the death of the complainant necessitates further enquiry and makes the case arguable for the purpose of bail especially when the injury is simple and on the non-vital part of the body.
'For the foregoing reasons I do not see any strong reason to withhold the concession of bail because the ultimate conviction if any would repair the wrong caused by mistaken relief of bail but no satisfactory reparation can be offered for unjustified incarceration if the accused is to be acquitted ultimately. I, therefore, allow this petition and direct the release of the petitioner on bail if he furnishes bail bond in the sum of Rs, three lacs with two sureties each in the like amount to the satisfaction of Judicial Magistrate who is to ensure that the sureties are local, reliable and men of means.
Cited by 3 cases
- AZMAT KHAN alias JALIL Versus State 2018 YLRN 205
- Zia-Ur-Rehman vs The State And Another 2013 KLR Criminal Cases 181
- AHMAD ALI vs THE STATE and another 2004 MLD 2000