2011 Y L R 2657
[Quetta]
Before Muhammad Hashim Khan Kakar, J
Master MUKHTIAR AHMED ---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No.(S) 35 of 2011, decided on 22nd July, 2011.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(2) --Penal Code (XLV of 1860), S.324/34---Attempt to commit qatl- e-amd---Bail,
grant of -Further inquiry ---Benefit of doubt ---Deeper appreciation of evidence at bail stage was
not warranted under the law; and only bird's -eye view was to be made, but bail application could
not be decided in vacuum ---Tentative perusal of the record had shown that prima facie, no
sufficient material was available to believe that accused had committed an offence which fell
under the prohibitory clause of S.497, Cr.P. P.C. --- Intention of accused to kill the complainant
was not available in the case, particularly when after sustaining a bullet injury, complainant fell
down and was entirety at the mercy of accused, but accused, despite having deadly weapons i.e.
Kalashnikovs, ceased to repeat their act ---Receipt of solitary firearm injury on the leg by the
complainant, had indicated that accused had no intention to kill hint; otherwise they would have
not shot on his leg ---Firing had been attributed to three accused persons, while the complainant
had sustained only one bullet injury on his leg---Prima facie, the applicability of S.324, P.P.C.
was yet to be determined during course of the trial; and at best the case of accused seemed to be
covered by provisions of Ss. 337-A, 337- D & 337- F of P.P.C. which otherwise, either did not
fall within the prohibitory clause of S.497, Cr.P. C., or bailable in nature and some of the
acts/offences, even punishable with fine only ---When an offence was also punishable with fine
only, accused would be entitled to bail as a matter of right, because if at the trial he was only
sentenced with fine, the period which he served as under -trial prisoner, due to refusal of bail
would amount to a case of double jeopardy, which was prohibited under S.26 of the General
Clauses Act, 1897, S.403, Cr.P.C. and Art.13 of the Constitution ---Case of accused, in
circumstances fell within the ambit of further inquiry ---Complainant was accompanied by one
person at the time of alleged occurrence, but neither statement of said person under S.161,
Cr.P.C. was recorded nor he was cited as a witness in the calendar of witnesses, which had
shown that prosecution had withheld a very important piece of evidence, which had created
doubt to the prosecution case ---Doubt could be taken into consideration, even at bail stage ---
Accused was admitted to bail, in circumstances.
Qurban Hussain and another v. The State PLD 1994 Lah. 385 and 1994 PCr.LJ 1756 rel.
(b) Penal Code (XLV of 1860) ---
----S. 324---Attempt to commit qatl- e-?amd ---Section 324, P.P.C. dealt with an attempt to
commit qatl- e-amd---Attempt as an indictable crime, would mean an intentional act with a view
to attain a certain end, but which was not achieved because of circumstances independent of the
will of the offender ---Applicability of S.324, P.P.C. had to be adjudged in the background of
member of accused persons, the weapons carried by them and the opportunity available to them
to complete the intended offence.
Jameel Ahmed Khan for Applicant.
Abdul Ghias Nausherwani, P.G. for the State.
Date of hearing: 22nd July, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---Applicant was refused bail by the Court of
Sessions Judge, Sibi Division Sibi vide order dated 6th July, 2011 in case Crime No.24 of 2011,
under section 324 read with section 34 of the P.P.C., registered at Levies Station, Bala Nari,
against which instant application has been directed.
2. The facts, forming the background of this bail application, precisely, are that complainant Dost
Muhammad in his report alleged that on the fateful day of the incident i.e. 21st April, 2011, he,
along with Shah Nawaz, started proceeding towar ds their village on a motorcycle from Sibi. At
about 6- 30 p.m., when they reached near village Chandar, four armed persons forcibly
intercepted them on gunpoint and they were identified as Abdul Latif, Zahoor Ahmed,
Muhammad Anwar and Mukhtiar Ahmed (appli cant). It was further alleged that the accused
persons made firing upon him with Kalashnikovs, in result whereof, he received one bullet
injury on his leg. Consequently, the instant F.I.R. was lodged.
3. I have given my anxious consideration to the respe ctive contentions of learned counsel for the
applicant and learned P.G., and have also perused the available record minutely, with their
assistance. I am in agreement with the learned Prosecutor -General that deeper appreciation of the
evidence at bail stag e is not warranted under the law and only bird's eye view is to be made, but
it is equally true that bail application cannot be decided in vacuum. A tentative perusal of the
record shows that, prima facie, there is no sufficient material available on the r ecord to believe
that the applicant has committed an offence, which falls under the prohibitory clause of section
497 of the Cr.P.C.
4. Section 324 of the Code of Criminal Procedure 1898, deals with an attempt to commit qatl -e-
amd. An attempt as an indic table crime means an intentional act with a view to attain a certain
end but which is not achieved because of circumstance independent of the will of the offender
who makes the - attempt. In the instant case, the intention of the applicant to kill the complainant
is not available, particularly when, after sustaining a bullet injury, the complainant fell down and
was entirely at the mercy of accused persons, but the accused persons, despite having deadly
weapons i.e. Kalashnikovs, ceased to repeat their act. Applicability of section 324 of the P.P.C.
has to be adjudged in the background of number of the accused persons, the weapons carried by
them and the opportunity available to them to complete the intended offence. Receipt of solitary
firearm injury on the leg f by the complainant has indicated that accused had no intention to kill
him; otherwise they would have not shot on his leg.
5. The firing has been attributed to three accused persons, while the complainant has sustained
only one bullet injury on his leg, as such, prima facie, the applicability of section 324 of the
P.P.C. is yet to be determined during course of the trial and, at best, the case of the applicant
seems to be covered by the provisions of section 337- ADF of the P.P.C., which are, otherwi se,
either do not fall within the prohibitory clause of section 497 of the Cr.P.C, or bailable in nature
and some of the acts/offences even punishable with fine only. Admittedly, when an offence is
also punishable with fine only, accused shall be entitled to bail as a matter of right, because if, at
the trial, he is only sentenced with a fine, the period, which he served as under trial prisoner, due
to refusal of bail, shall amount to a case of double jeopardy, which is prohibited under section 26
of the Ge neral Clauses Act, 1897, section 403 of the Code of Criminal Procedure, 1898 and
Article 13 of the Constitution of Islamic Republic of Pakistan, 1973: In the given circumstances,
the case of applicant falls within the ambit of further inquiry.
6. There i s another important aspect of the case, which has been over sighted by the trial court,
while refusing bail to the applicant. It appears from the contents of F.I.R. that complainant was
accompanied by one Shah Nawaz at the time of alleged occurrence, but i t is very strange to note
that neither his statement under section 161 of the Cr.P.C. was recorded, nor he was cited as a
witness in the calendar of witnesses, which shows that the prosecution has withheld a very
important piece of evidence, which creates doubt to the prosecution case. It is a settled principle
of law that the doubt can be taken into consideration even at bail stage. In this regard, I may rely
upon the case of Qurban Hussain and another v. the State reported in PLD 1994 Lahore 385(b),
wherein it has been held as under: --
--S.497(2) ---Bail ---Non-bailable offence--- Bail to a person accused of a non- bailable
offence is to be allowed as a right under S.497(2), Cr.P.C, if no reasonable grounds exist
for believing that he has committed a non- bailable offence or there are sufficient grounds
for further inquiry into his guilt ---Bail in such cases is not withheld only in the discretion
or for the reason that maximum sentence provided for the offence is death or
imprisonment for life."
Reliance is also placed to a judgement -reported in 1994 PCr.LJ 1756.
7. For what has been discussed and stated hereinabove, I hereby grant post arrest bail to the
applicant, subject to furnishing surety bond in the sum of Rs.200,000 (rupees two hundred
thousand only) and PR bond of the like amount to the satisfaction of the trial court. The
observations, made hereinabove, are tentative in nature and shall not affect the case of either
party on merits.
These are the reasons of my short order dated 22nd July, 2011 announced in the open court.
H.B.T./69/Q Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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