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Criminal Miscellaneous No. 253/13 of 1986, decided on 5th April, 1986.

‑‑‑S. 497(5)‑‑Bail, cancellation of‑‑Shot fired by accused, landing on thigh of prosecution witness and fracturing it at three points‑ Counter‑version of accused party that complainant party was aggressor and accused acted in self‑defence also found false during investigation‑ Additional Sessions Judge, held, not exercised discretion, while granting bail to accused properly and took erroneous view of matter‑‑Bail cancelled in circumstances.

Siraj Din v. Saghiruddin alias Goga etc. 1970 S C M R 30 and Shahadat Ali v. The State 1985 P Cr. L J 1 ref.

Ghaus Muhammad Chaudhry for Petitioner.

Kh. Muhammad Sharif for Respondent No.1.

Muhammad Naeem for the State.

The petitioner, who is the complainant in the case registered at Police Station Wahdat Colony, Lahore under section 307/34, P.P.C. seeks cancellation of the bail of respondent No.1 granted by Additional Sessions Judge, Lahore, vide order, dated 20‑1‑1986.

2. According to the F.I.R., respondent Asadullah Munir and his father Muhammad Munir started abusing son of the petitioner because of a quarrel over the children of the two families. On the intervention of the complainant and his son, Muhammad Munir brought out the gun and while handing over the same to respondent No. 1, asked him to finish them. Asadullah Munir fired a shot at Ijaz Ahmad, which struck him on the right thigh. He fell down. Three kids of six and five years playing ground, also received pellet injuries.

As a result of the injury the thigh of Ijaz Ahmad got fractured at three points. He remained in the hospital for 40 days and is still under treatment.

3. The learned Additional Sessions Judge granted bail to respondent No. 1, observing that, there is nothing to suggest that cross‑case of the occurrence is without any substance, .in view of the medico‑legal report and the duration of injuries explained therein. Secondly, the injuries to the injured Ijaz Ahmad is on the less vital part of the body. Though the case of the petitioner ignoring the provisions of section 307 of the P.P.C. comes within the definition of section 326 of the P.P.C. still the plea that the act was committed in self‑defence cannot be brushed aside altogether which makes the matter at this stage as one of further investigation.

4. Learned counsel for the petitioner contended that respondent No.1 had deliberately fired the shot at Ijaz Ahmad in order to murder him, that as a result of the injuries, Ijaz Ahmad, who is student of Engineering College, has become lame for ever, that the learned Additional Sessions Judge after rejecting the pre‑arrest bail of respondent No. 1 granted him bail only 15 days after his arrest, that the alleged cross‑version put forth by respondent No.1 and his father was found false during investigation by the S.H.O. on receipt of application submitted by respondent's father to the D.I.‑G. and that the observations of the learned Additional Sessions Judge that the injury was on less vital part of the body are uncalled for, as the injured could have died as a result of the injuries on the thigh as well on account of haemorrhage.

5. Learned counsel for respondent No.1 contended that the father of respondent has filed a complaint against the petitioner and his other family members, in which preliminary evidence has already been recorded and thus it is a case of two versions. Learned counsel contended that the story put forth by the complainant is not believable, in that learned counsel contended that if father of the respondent had brought the gun himself, there was no reason for him to hand over the same to the respondent. Counsel contended that the respondent was 17 years of age and that the discretion exercised by the Additional Sessions Judge in granting him bail does not call for any interference. Counsel cited Siraj Din v. Saghiruddin alias Goga etc. 1970 S C M R 30 and Shahadat Ali v. The State 1985 P Cr. L J 1.

6. The observation of the Additional Sessions Judge that it was an occurrence of two versions and the contentions of the learned counsel for the respondent before me on the same lines, does not seem to possess any weight for the present, for two reasons. First, the stance of the respondent that the complainants were the aggressors and the respondent had acted in self‑defence, put further by the respondent during investigation through an application submitted to the D.I.‑G. was found false. Secondly, the injuries said to have been suffered by Mrs. Muhammad Munir, mother of respondent No.1, for which she was medically examined on 27‑1i‑1985 at 3‑45 p.m., are extraordinarily of minor nature. In fact two of them were complaints of pain. The dimension of abrasion was 0.5 x 0.4 c.m. There is also opinion of tae doctor that possibility of the injuries having been self‑suffered cannot be ruled out.

7. The observation of the Additional Sessions Judge that the injuries are on less vital part is again a very light view taken of the damage caused by the injuries. The thigh of the injured P.W., who is stated to be a student of Engineering College, had got fractured at three points, as a result of which he is still in bed according to the learned counsel for the petitioner.

The argument of the learned counsel for the respondent that since the case was to be tried by a Court of Magistrate Section 30, he will not be able to award sentence of more than seven years and so the case did not fall within the prohibitory clause, although have its own weight, but the fact remains that it was not a case where the bail should have been granted only 15 days after the arrest particularly so, when the pre‑arrest bail was refused earlier.

The ground that the respondent is 17 years of age does not advance his case, in view of the grave nature of allegations levelled against him.

8. The case reported at page 30 of 1970 S C M R does not contain the nature of allegations. In fact even the offence charged of, is also not mentioned. It was a petition for special leave to appeal, seeking cancellation of bail, which was refused on the ground that the respondent was evidently minor, as the X‑ray revealed that he was 16/17 years old and bail could be granted on this ground even in a case of capital offence. It has been observed therein that no case of excess of power of irregularity in the exercise of discretion was made out.

In the case reported at page 1 of 1985 P Cr. L J bail after arrest granted to the petitioner by the Magistrate in a case registered against him under section 324/326, P.P.C. for having caused a single Bugdha blow on the knee of the injured P. W., was cancelled by the Additional Sessions Judge. He was allowed bail by the High Court after three months mainly on the ground that since the case was being tried by First Class Magistrate, who could award at the most three years' R.I. the case did not fall within the prohibitory clause of section 497, Cr.P.C.

Both the authorities, to my mind, do not advance the case of the respondent. The learned Additional Sessions Judge while granting bail has not exercised discretion properly and has taken an erroneous view of the matter.

9. In this view of the matter, the petition is granted. The order, dated 20‑1‑1986 of Additional Sessions Judge, Lahore, is set aside.

S.G.D. Bail cancelled.

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