Find a Lawyer

Criminal Miscellaneous No. 71 of 1984, decided on 29th November, 1984.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S.307/34 and Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, ST. 14/15‑‑Bail, grant of‑‑Accused firing at complainant without any provocation and their act motivated by intention to kill accused‑‑Weapons of offence also recovered from accused and empty cartridges, allegedly used in fire‑arms for commission of offence, recovered from spot‑‑Offence falling within prohibitory clause of S.497, Cr.P.C.‑‑Accused, held, not entitled to be released on bail in circumstances.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 307/34‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974, S. 14/15‑‑Bail, grant of‑‑Serious illness of accused‑‑Medical report produced not so complete and comprehensive as to enable Court to form any opinion about gravity of ailment from which accused suffering‑‑Provisions of 5.497, Cr.P.C., held, could not be invoked for release of accused on bail on ground of serious illness‑‑Case, however, remanded to District Criminal Court to decide question of release under S.497(1), Criminal Procedure Code after obtaining report from Board of Doctors.

Muhammad Sharif Tarlq for Petitioners.

Mirza Muhammad Nisar, Additional Advocate‑General assisted by Muhammad Riaz Akhtar, Ali Muhammad and M.Y. Surakhvi for the Complainants.

Date of Institution: 21st November, 1984.

This is an application for the grant of bail moved on behalf of the petitioners against whom a case under section 307/34, A. P. C. read with section 14/15 of the Islamic Penal Laws Act, 1974, has been registered by the Police Station Mirpur.

2. The brief facts of the case leading to the filing of this application are that on 15‑10‑1984 at about 8‑15 p.m. Ghulam Abbas, complainant made a written report to the S.H.O., Mirpur to the effect that at about 5.00 p.m. while he was on his way back to his house from the cattle‑shed where he had gone to feed his dog, the petitioner Wajid Ali fired one after another two gun shots on him which struck him while Jehfer Ali, petitioner caused injury on his left ear with the pistol fire.

3. On the above report‑, the case against the petitioners was registered under section 307/34, A.P.C. read with sections 14/15 of the Islamic Penal Laws Act and they were arrested by the Police Mirpur. The applications of the petitioners for bail before the Tehsil Criminal Court and the District Criminal Court Mirpur having been rejected, the petitioners have moved the present application before this Court for releasing them on bail.

4. I have heard the learned counsel for the petitioners as well as the learned Additional Advocate‑General and have also perused the record of the case.

5. The learned counsel for the petitioners has sought bail of the petitioners on the following grounds:‑

(a) That the allegation against Jehfer Ali petitioner of his having fired a pistol shot on the left ear of the complainant stands belied from the fact that the injury found on the left ear of the injured person is only of 1/4" diameter whereas it should have been of much larger diameter, had it been caused with the fire of pistol because the diameter of the bullet of the pistol is larger than that of 1/4" diameter;

(b) That from the material on record, the injury No. 3 does not appear to be grievous one as there is nothing on the record to indicate that the gun shot which caused the said injury had penetrated upto the third rib of the complainant which has been found to have been fractured by X‑ray examination for which reason the said injury has been described as grievous;

(c) That the bail is invariably granted even in a case of section 307, A.P.C. where the injury caused to the injured person is only simple one;

(d) That in this case, the maximum imprisonment for life contemplated in section 307, A. P. C. is not likely to be imposed under the circumstances of the case and as such the petitioners deserve release on bail because the prohibition contained in section 497, Cr.P.C. on the grant of bail would not apply in their cases;

(e) That Jehfer Ali, petitioner is an old, infirm and sick person who is suffering from grave and serious disease of tuberclous and severe brouctial asthma as is apparent from the medical examination report made by the Medical Officer, District Headquarter Hospital, Mirpur in compliance with the order of the Tehsil Criminal Court, for which reason he becomes entitled to be released on bail under proviso to section 497, Cr.P.C.; and

(f) That Wajid Ali, petitioner is a College student whose remaining in the Judicial Lock‑up would adversely effect his future career.

6. The learned Additional Advocate‑General and the counsel for the complainant have vehemently opposed this application. It has been contended by them that the petitioners being accuses of an offence under section 307/34, A.P.C. cannot be slowed bail in view of the prohibitive clause of section 497, Cr.P.C. It is further contended by them that there are reasonable grounds for believing the petitioners of having caused fire‑arms injuries to the injured person in an attempt to murder him as the above allegation finds support from ocular evidence, report of Medical Officer, recovery of weapons of offence from the petitioners and the recovery of empty cartridges from the scene of occurrence. It has been further contended that Jehfer Ali, petitioner is not suffering from any serious or grave disease which may require hospitalization and can be satisfactorily treated in the Jail by the Doctor concerned.

7. After giving my due consideration to the arguments addressed at the bar and going through the material so far brought on the record, I am of the opinion that at this stage the petitioners are not entitled to be released on bail on merits and that on the medical report made by the Medical Officer in response to the order of the Tehsil A Criminal Court, it is not possible to determine conclusively as to whether or not the said petitioner is suffering from serious illness and he deserves to be released on bail under the provision of section 497, Cr. P. C.

8. As regards the merits of the case, the petitioners are accused of causing fire‑arm injuries to the complainant which action prima facie amounts to attempt to murder him in view of the facts and circumstances of the case. The complainant was fired at by the petitioners with fire‑arms without any provocation or as a result of any criminal act leads to the inference that the criminal act of the petitioners complained of was motivated by the intention to kill the complainant. In this view of the matter, the offence alleged to have been committed by the petitioners falls within the prohibitive clause of section 497, Cr.P.C. under which the grant of bail is barred for an offence punishable with imprisonment for life provided there are reasonable grounds for believing B the same to have been committed. In this case, the above condition of there being reasonable grounds for believing the offence under section 307/34, A.P.C. have been committed is fully satisfied on the basis of the material available on the record. The petitioners have been seen to have caused the fire‑arm injuries to the complainant by two witnesses. The medical report confirms that the complainant has received the fire‑arms injuries. The weapons of offence have also been recovered from the petitioners and the empty cartridges alleged to have been used in the fire‑arm for the commission of the offence have also been recovered from the spot.

In the presence of the above evidence, it is not possible to say at the present moment that it is a case of non‑existence of the reasonable grounds for believing the petitioners having committed an offence for which the bail is prohibited under the law.

10. For the above reasons, the arguments of the learned counsel for the petitioners on merits enumerated above do not appear to be sound and they need examination when the investigation of the case is complete and the challan is presented before the trial Court. Much of the above arguments would become relevant when the report of the fire‑arms expert to whom the fire‑arms, bullets recovered from the body of the complainant and the cartridges found on the spot have been sent for examination, is received.

11. However, the arguments of the learned counsel for the petitioners that Jehfer Ali, petitioner is suffering from serious ailment which fact coupled with his age and infirmity entitles him to be admitted on bail under the provision of section 497, Cr.P.C. deserves serious consideration but after going through the medical examination report of Doctor Zaffer Iqbal, C.M.O. sent by him in response to the order of the Tehsil Criminal Court, Mirpur, I am of the opinion that it is not so complete and comprehensive so as to enable the Court to form any opinion about the gravity or otherwise of the ailment from which Jehfer Ali, petitioner is presently suffering . Both the counsel for the parties have agreed that in order to determine the exact nature and the degree of gravity of the disease the petitioner is suffering from, he should be got examined from the Board of Doctors. I am quite in agreement with this suggestion.

12. The case is, therefore, remanded to the District Criminal Court, Mirpur to decide the question of releasing Jehfer Ali, petitioner under the proviso to section 497(1), Cr.P.C. after obtaining report of the Board of Doctors consisting of at least three Doctors, to be constituted by the Medical Superintendent, District Hospital, Mirpur. The District Criminal Court would request the said Medical Superintendent to do the needful and submit the report of the Board as soon as possible. Since the matter, required to be decided by the District Criminal Court relates to the release of an accused‑person on the ground of sickness which obviously is of an emergent nature, the said learned Court would make its best efforts to decide the same at his earliest convenience on the priority basis.

M. Y. H. Case remanded.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.