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Petitioner: MUSHTAQ AHMAD VS Respondent: THE STATEHonorable Justice Ch. Iftikhar HussainAbdul Aziz Khan Niazi,Ch. Faqir Muhammad,Ch: Ghulam Muhammad
2003 M L D 1458
2003 M L D 1458
[Lahore]
Before Ch. Iftikhar Hussain, J
MUSHTAQ AHMAD---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No.409-B of 2003, decided on 8th April, 2003.
Criminal Procedure Code (V of 1898)-----
----S.497(2)---Penal Code (XLV of 1860), Ss.324/337-F(ii)(iii)/34-- Bail, grant of---Further inquiry---Solitary fire-arm injury on non-vital part of body of injured was ascribed to accused and accused had not repeated fire---Question that whether S.324, P.P.C. could be attributed against accused, needed serious consideration and same would be gone into at the time of trial---Case of accused, in circumstances was covered under subsection (2) of S.497, Cr.P.C. requiring further inquiry into the guilt of accused---Accused was behind the bars and stated to be non convict---Case for enlargement of accused on bail having been made out, he was admitted to bail.
Saleem Khan v. The State 1999 PCr.LJ 140; Riaz v. Malik Dad and another 2001 PCr:LJ 1483 and Munir Ahmad and another v. The State 1997 SCMR 445 ref:
Abdul Aziz Khan Niazi for Petitioner.
Ch: Ghulam Muhammad for the State.
Ch. Faqir Muhammad for the Complainant.
ORDER
Mushtaq Ahmad, the petitioner has sought for post-arrest bail in Case F.I.R. No.286 dated 26-10-2002 under section 324/337-F (ii), (iii)/34, P.P.C. registered with Police Station Makhdoom Rashid, District Multan.
2. Briefly the prosecution case as per F.I.R. is that on 26-10-2002 at about 8-00 a.m. he had fired with carbine at Muhammad Javed Iqbal hitting on his left upper-arm.
3. The motive behind the occurrence is that the complainant had a garden of Kinnun. The children of Mushtaq etc. used to pluck the Kinnuns from there. The tenant of the complainant had forbidden and admonished them on doing so. On that grudge petitioner and his co accused in furtherance of their common intention had committed the said offence.
4. It has been contended on his behalf that he has falsely been roped in; that solitary fire-arm injury to injured Muhammad Javed Iqbals has been attributed to him; that he did not repeat fire; that the said injury was on his non-vital part of the body; that doctor in his medical report has mentioned the injury No.2 to be with bullet while no weapon projecting bullet has been used in the alleged crime and so there is conflict in the medical and the ocular account; that there is previous litigation between the parties as the complainant Muhammad Ashraf had brought civil suit against his father and two others; and that he is behind the bars for the last about five months and previous non-convict. In support of bail plea reliance has been placed upon the case of Saleem Khan v. The State (1999 PCr.LJ 140 Karachi).
5. As against the same, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that he with carbine had fired at Muhammad Javed Iqbal injured hitting on his left arm; and that motive is also ascribed to him. The reliance has been placed upon the case of Riaz v. Malik Dad and another (2001 PCr.LJ 1483 Peshawar), Munir Ahmad and another v. The State (1997 SCMR 445).
6. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
7. The facts remain that solitary fire-arm injury to Muhammad Javed Iqbal injured has been ascribed to him as is obvious to the above position. The same was on his non-vital part of the body. There was admittedly no repetition of fire on his part. In these circumstances, the question that whether section 324 can be attracted against him need serious consideration. The same would be gone into at the time of trial.
8. However, in view of the position, his case is definitely covered under subsection (2) of section 497, Cr.P.C. requiring further inquiry into his guilt. In this regard reference is made to the case of Saleem Khan v. The State (1999 PCr.LJ 140 Karachi).
9. As regards the authorities referred to by the other side, the same are not aptly applicable to the instant case.
10. In the case of Riaz v. Malik Dad and another (2001 PCr.LJ 1483 Peshawar), the complainant had sustained injury on his belly. As stated above, the injury ascribed to the petitioner of Muhammad Javed Iqbal injured was on his non-vital part of the body.
11. Similarly, the case of Munir Ahmad and another v. The State (1997 SCMR 445) is distinguishable on facts from the instant case inasmuch as that the complainant therein had received injury with carbine at his back of left hand and left side of his abdomen and abdomen is also the vital part of the body.
12. He is behind the bars and stated to be non-convict. So, I find that the case for his enlargement on bail has been made out. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail bond in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court.
H.B.T./M-1882/L Petition accepted.