June 2023

PLJ 2023 Cr.C. 539
[Lahore High Court, Multan Bench]

Present: Sadiq Mahmud Khurram, J.

TASAWAR ABBAS--Petitioner

versus

STATE and another--Respondents

Crl. Misc. No. 4254-B of 2022, decided on 22.9.2022.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), S. 324, 337-F(iii), 452, 109 & 34--Post-arrest bail--Grant of--Petitioner along with his co-accused attacked the complainant party and the petitioner, while armed with a pistol, fired at the complainant of the case, hitting him on the left leg--After receiving the reports of the Radiologist, the Medical Officer opined that the injury observed by him on left leg, was of the kind of “Jurh Ghayar-Jaifah Mutalahimah” made punishable under Section 337F(iii)--Complainant of the case, was entirely at the mercy of petitioner, but the petitioner, despite having a firearm weapon, did not cause any other injury--The applicability of Section 324 of PPC is yet to be determined during the course of the trial--The petitioner is behind the bar and the investigation has been finalized--Post arrest bail allowed.

[Pp. 540, 541 & 542] A, B, D, E, F

1998 SCMR 500, PLD 2004 SC 477 ref.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 324--An attempts as an indictable crime means an intentional act with a view to attain a definite end but which is not achieved because of a circumstances, independent of the will of the offender who makes the attempt. [P. 541] C

Khawaja Qaiser Butt, Advocate for Petitioner.

Mr. Israr Hayyat Sulehri, Advocate for Complainant/ Respondent No. 2.

Syed Nadeem Haider Rizvi, Deputy District Public Prosecutor for State.

Date of hearing: 22.9.2022.

Order

Through the instant petition filed under Section 497, Cr.P.C., the petitioner namely Tasawar Abbas seeks post-arrest bail in the case F.I.R. No. 344 of 2021, dated 25.07.2021, registered in respect of offences under Sections 324, 337-F(iii), 452, 109 and 34, P.P.C. at the Police Station Saddar Burewala, District Vehari.

2. The allegations as against the petitioner, culled from the evidentiary material produced before the Court, are that he along with his co-accused attacked the complainant party and the petitioner namely Tasawar Abbas, while armed with a pistol, fired at the person of Mubassir Haider, the complainant of the case, hitting him on his left leg.

3. I have heard learned counsel for the petitioner, the learned counsel for the complainant/Respondent No. 2, the learned Deputy District Public Prosecutor and with their able assistance perused the record.

4. This is a bail after arrest and only a tentative assessment of the evidentiary material produced before the Court is permissible at this stage. The allegations as against the petitioner are that he along with his co-accused attacked the complainant party and the petitioner namely Tasawar Abbas, while armed with a pistol, fired at the person of Mubassir Haider, the complainant of the case, hitting him on his left legal. A perusal of the record reveals that Mubassir Haider, the complainant of the case, was examined by the Medical Officer and the Medical Officer observed a firearm entry wound on the left leg of Mubassar Haider, however, kept his final opinion pending till the receiving of the reports from the Radiologist. After receiving the reports of the Radiologist, the Medical Officer opined that the injury observed by him on left leg of Mubassir Haider, the complainant of the case, was of the kind of “Jurh Ghayr-Jaifah Mutalahimah” made punishable under Section 337-F(iii), P.P.C. The offence made punishable under Section 337-F(iii), P.P.C. is punishable with imprisonment for a term which may extend to three years as ‘tazir’. A tentative perusal of the record shows that prima facie, there is no sufficient material available on the record to believe that the petitioner had committed an offence, which falls under the prohibitory clause of Section 497 of the, Cr.P.C. The learned Deputy District Public Prosecutor has submitted that the contents of the F.I.R. reveal that the petitioner had committed an offence under Section 324, PPC. Section 324 of the, P.P.C. deals with an attempt to commit Qatl-i-Amd. An attempt as an indictable crime means an intentional act with a view to attain a definite end but which is not achieved because of a circumstance, independent of the will of the offender who makes the attempt. In the instant case, the intention of the petitioner to kill Mubassir Haider, the complainant of the case, prima facie is not available, particularly when, after sustaining an injury Mubassir Haider, the complainant of the case, was entirely at the mercy of petitioner, but the petitioner, despite having a firearm weapon, did not cause any other injury to Mubassar Haider, In this manner, the case of petitioner is quite distinct from his co-accused. The prosecution is yet to produce any evidence establishing that there were certain circumstances, independent of the will of the petitioner, which prevented the petitioner from committing the Qatl-i-Amd of Mubassir Haider, the complainant of the case. Applicability of Section 324 of the P.P.C. in this case requires further inquiry and probe. Receipt of injury by Mubassir Haider, the complainant of the case, on his left leg has indicated that prima facie, the petitioner had no intention to kill him; otherwise, he would have not chosen the leg of Mubassir Haider, the complainant of the case, to inflict the injury. The applicability of Section 324 of the, P.P.C. is yet to be determined during the course of the trial and at best, the case of the petitioner seems to be covered by the provisions of Section 337-F(iii) of the P.P.C., which offence does not fall within the prohibitory clause of Section 497 of the, Cr.P.C. In the given circumstances, the case of the petitioner falls within the ambit of cases where the grant of bail is a rule. Reliance is placed on the case of “Jan Muhammad versus Haji Noor Jamal” (1998 SCMR 500) wherein it has been held as under:

“In light of the provisions contained in Section 324, P.P.C. read with Section 337, P.P.C., we agree with the submissions made by the learned counsel for the petitioner. We agree with him that Present case is not covered by the prohibition contained in subsection (1) of Section 497, Cr.P.C.”

Reliance is placed on the case of “Muhammad Umar versus The State and another” (PLD 2004 Supreme Court 477) wherein it has been held as under:

“We have heard learned counsel for both the sides and have also gone through the record particularly the medical certificate. A perusal whereof indicates that allegedly the petitioner fired upon the outer side of the right leg’s middle part of the injured Shahid Iqbal, therefore, prima facie, We are of the opinion that he had no intention to fire upon the vital part of the injured Shahid-Iqbal for the purpose of launching murderous assault. Be that as it may, now the challan has been submitted, trial has commenced, petitioner is in custody with effect from the date of his arrest and is no more required for the purpose of investigation of the case, therefore, no useful purpose will be served by keeping him in custody.”

Reliance is also placed on the case of “Muhammad Faisal versus The State and another” (2020 SCMR 971) wherein it has been held as under:

“6. As far as the question of applicability of Section 324, P.P.C. is concerned, undeniably, the injuries are on non-vital part against a motive which is feeble in nature, hence, we are constrained to give any finding lest it may prejudice case of either party, however, it would be resolved by the learned trial Court after recording of evidence during the course of proceeding before it. Keeping in view all the facts and circumstances and while seeking guidance from judgment of this Court titled as “Muhammad Umar v. The State and another” (PLD 2004 Supreme Court 477), we are of the considered view that the case of the petitioner is of “further inquiry” falling within the ambit of Section 497(2), Cr.P.C. Otherwise, liberty of a person is a precious right which has been guaranteed in the Constitution of Islamic Republic of Pakistan, 1973.”

Besides, no exceptional circumstances appear in this case to withhold bail to the petitioner. The petitioner is behind the bars since his arrest on 14.01.2022 and the investigation has been finalized, and the allegations against him are yet to be proved through evidence in the Court, as such, further detention of the petitioner in this case at this stage would not serve any fruitful purpose. Admittedly, the petitioner is a previous non-convict. The trial has not seen any fruitful progress as yet.

5. For the foregoing reasons the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,700,000/- (rupees one million and seven hundred thousand only) with two sureties, each in the like amount, to the satisfaction of the learned trial Court.

6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial,