Dr. Anwar Farid vs State

2012 Y L R 1761

[Peshawar]

Before Nisar Hussain Khan, J

Dr. ANWAR FARID---Applicant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Application No.79 of 2011, decided on 27th December, 2011.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/34---Attempt to commit qatl-e-amd---Bail, refusal of---Cross version F.I.Rs.---F.I.R. revealed that accused and his co-accused brother were directly charged for effective firing on the complainant while he was ploughing his fields and according to medical report, complainant suffered five fire arm injuries out of which three were on the vital parts of the body---Site plan and recovery memo revealed that blood-stained earth had been recovered from the place of the injured-complainant and his blood-stained clothes had also been taken into possession---Ocular account furnished in the F.I.R. was fully supported by the circumstantial evidence which, prima facie, connected the accused with the commission of the crime, which on basis of its punishment, fell within the prohibitory clause of S. 497, Cr.P.C.- --Cross version F.I.R., lodged from the accused's side, showed that disputed property was already in possession of the complainant party and said F.I.R. also indicated that accused along with his brother and other co-accused, after assembling together, went to the place of occurrence when complainant was ploughing the field---Consequences of the occurrence were suggestive of the fact that accused and his brother were also armed with fire arms---Convergence of accused and his co-accused, while being armed with deadly weapons, and proceeding to the place of occurrence and then firing at the complainant and consequential set of injuries on the body of the complainant, were clear indications, pointing towards the conduct, mode, manner and intention of the accused and his co-accused---Six persons had been charged in the cross version F.I.R. out of which two were given the role of effective firing, while according to same F.I.R. five persons of accused's party were shown standing side by side in a row but only one person from the accused's side had allegedly sustained a single fire arm injury on the knee and no blood had been recovered from the place---Registration of cross F.I.R., prima facie, seemed a shrewd move on the part of the accused party---Bail petition of accused was dismissed, in circumstances.

Arif Din v. Amir Khan and another 2005 SCMR 1402 fol.

Ali Muhammad's case PLD 2009 Lah. 312 distinguished.

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

----S. 497---Penal Code (XLV of 1860), Ss.324 & 337-N(2)---Attempt to commit qatl-e-amd, hurt---Scope---Bail on grounds of Arsh and Daman---Punishment of Arsh and Daman, applicability of---Bail, refusal of---Petitioner's contention that accused should be awarded bail as it was merely a case of Arsh or Daman, while punishment of imprisonment was discretionary, in terms of S. 337-N(2), which could only be awarded if accused was hardened and desperate criminal or was a previous convict while there was no such allegation against accused---Validity- --Section 324 of P.P.C, 1860, had two parts to cope with two different situations---First part provided that accused/offender shall be punished with imprisonment, which may extend to ten years, if he does any act with such intention or knowledge and under such circumstances, that if he by that act caused Qatl, he would be guilty of Qatl-e-amd---No punishment of Arsh or Daman was provided for the offence falling within the ambit of first part of S. 324 of P.P.C, 1860--- Second part of S. 324 , P.P.C, 1860, provided that if any hurt is caused in the process of such act, the offender shall be liable to punishment, provided for hurt caused, in addition to the imprisonment and fine, mentioned in the first part---Accused's case was that of attempt to commit Qatl-e-amd, which entailed punishment of ten years while punishment for injuries caused to the victim was in addition to the imprisonment---Bail petition of accused was dismissed in circumstances.

Ali Muhammad's case PLD 2009 Lah. 312 distinguished.

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

----S. 497---Bail---Cross F.I.R., effect of---Registration of cross F.I.R. alone cannot be accepted as a sound basis for grant of bail, particularly when the genuineness of cross version is yet to be established at the trial.

Arif Din v. Amir Khan and another 2005 SCMR 1402 ref.

Pir Liaqat Ali Shah for Applicant.

Nasib ur Rehman for Respondent.

Ahmad Farooq A.A.-G. for the State.

Date of hearing: 27th December, 2011.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Petitioner Dr. Anwar Farid, seeks bail in case F.I.R. No.694, dated 13-11-2011, registered under sections 324/34, P.P.C. at Police Station Saddar District, Bannu.

2.The stated facts of the prosecution case are that complainant Muhammad Nawab Khan son of Abdul Majeed Khan aged about 70/72 years, lodged a report, in injured condition to Laiq Zaman A.S.-I., in emergency room Civil Hospital Bannu, that he was busy in ploughing his field, situated in Kotaka Talab Shah. He was also accompanied by his cousin Master Ilyas son of Muhammad Sultan and his son Sohail. It was 9 AM, when Farid Anwar and Amirullah sons of Nasrullah, his co-villagers, armed with Kalashnikoves and Pistols, came there and started firing with their respective weapons, with the intention to kill him. As a result of their firing, complainant sustained injuries and fell down. While, the accused decamped from the spot, after the occurrence. The complainant party being unarmed, could not resist. Motive of the occurrence is a land dispute.

3.Learned counsel for the petitioner argued that there is a cross F.I.R. No.695 of the even date, registered against the complainant party. According to which, date, time and venue of the occurrence is the same. While accused of cross F.I.R have been released on bail, so the petitioner is also entitled for concession of bail, on the ground of counter version and principle of consistency, as both the parties, deserve equal treatment. Learned counsel further argued that I.O. did not collect any proof of ownership of the disputed property, which could have determined the aggressions of either side. Learned counsel lastly argued that it is merely a case of Arsh or Daman, while punishment of imprisonment is discretionary, in terms of section 337-N, P.P.C. which can only be awarded if the accused is hardened and desperate criminal or is a previous convict while there is no such allegation against the petitioner. So he is entitled for concession of bail.

4.Learned counsel for the complainant argued that cross case is a fabricated one because no blood has been recovered from the place of injured of cross F.I.R nor any empty has been recovered from the place of the accused of cross F.I.R. While the pistol has been recovered from co-accused Amirullah, hence, the petitioner is not entitled for concession of bail.

5.Learned A.A.-G. adopted the arguments of learned counsel for the complainant.

6.The perusal of F.I.R reveals that petitioner Anwar Farid and his brother Amirullah are directly charged for effective tiring on the complainant, when he was ploughing his fields. According to medical report, there arc five firearm injuries on the person of the complainant, out of which, three are entry wounds. One entry wound is above the pubic bone and its exit is at left buttock. One firearm entry wound of 2" x 1/2" is on top of skull. Both these firearm wounds are on the most vital parts of the body, indicating the intention of the assailants. The 3rd one is on right shoulder engaging the chest area which also is a vital part of the body. According to the site plan and recovery memo, blood-stained earth has been recovered from the place of injured- complainant. Blood-stained clothes of the injured-complainant have also been taken into possession. The ocular account furnished in the F.I.R is, fully supported by circumstantial evidence like medical report, recovery of blood-stained earth and clothes, which prima facie connect the petitioner with the commission of crime, entailing punishment, falling within the Prohibitory Clause of section 497, C.P.C.

7.Learned counsel for the petitioner has mainly stressed for bail on the ground of cross version, so the record of Case F.I.R No.495, of the even date, was also requisitioned, which is before the Court. The narrative of the very alleged cross F.I.R. is reflective of the fact that the disputed property was already in possession of the complainant party of F.I.R. No.694, as in preceding crops season, Maize (millet) was sown by them. This cross report also indicates that petitioner and his brother Amirullah along with three others, after assembling together, went to the place of occurrence, when Muhammad Nawab complainant of F.I.R No.694 was busy in ploughing the field. The consequences of the occurrence are suggestive of the fact that petitioner and his brother were also armed with firearms. This whole episode of convergence of petitioner and his co-accused, having armed themselves with deadly weapons and proceeding to the place of occurrence and then firing at the complainant and then consequential seats of injuries on the body of complainant, are clear indications, pointing towards their conduct, mode, manner and intention of the petitioner and his co-accused. Moreover, six persons have been charged in this cross F.I.R. and two out of them, have been given the role of firing. While five persons of petitioner's party are shown standing, side by side in a row but only Sabez Ali has allegedly sustained a single firearm injury on his knee, and no blood has been recovered from his place. The record of F.I.R. No.694, suggests that Sabez Ali, injured of alleged cross F.I.R. No. 695 is at Point No.2 adjacent to Point No.1, the place of Nawab Khan injured, which is in firing range of Points Nos.3 and 4, the place of petitioner and his co-accused Amirullah. While blood has also been recovered from this place of Sabez Ali, shown in the site plan of F.I.R No.694.

8.This is not a proper stage for dilating upon the evidence of the case and expressing opinion with regard to the merits of cross version, lest it may prejudice the case of either side. On tentative assessment of the evidence, by putting record of both the cases in juxtaposition as discussed above, the petitioner is not found entitled for concession of bail, on the ground of cross version, when he is, otherwise, not entitled for bail, on merits. Because, mere registration across F.I.R. cannot be accepted a sound basis for grant of bail, particularly when the genuineness of cross version is yet to be established at the trial. In this regard principle laid down in Arif Din v. Amir Khan and another 2005 SCMR 1402 is followed. The registration of cross F.I.R., prima facie, seems to be a shrewd move of accused party, for which they may not be rewarded with any premium nor the Court may be hood winked by their such gimmick.

9.Learned counsel for the petitioner also contended that, in such like, cases of hurt, only punishment provided in the Statute is Arsh or Daman. While sentence of imprisonment in terms of section 337-N(2), P.P.C., can only be awarded, if the accused is a previous convict, hardened and habitual or desperate or dangerous criminal. So the petitioner is entitled for bail, on the principle, laid down by the Hon'ble Lahore High Court, in Ali Muhammad case PLD 2009 Lah. 312. With utmost respect, the referred case is not relevant to the facts of instant case, as that was not a case of attempt to commit Qatl-e-Amd, but was of hurt, registered under sections 337- A(i)/337-F(i)/337-A(iii)/34, P.P.C. In these sections, the primary punishment provided for the hurt is Arsh or Daman, while punishment of imprisonment is discretionary. Whereas, the instant case, is registered under sections 324/34, P.P.C, which has its own scheme of sentence section 324, P.P.C. has two parts, to cope with two different situations. By virtue of first part, the accused/offender shall be punished with imprisonment, which may extend to ten years, if he does any act with such intention or knowledge and under such circumstances, that if he by that act caused Qatal, he would be guilty of Qatl-e-Amd. There is no punishment of Arsh or Daman, provided for the offence falling within the ambit of part first of section 324, P.P.C. It is the second part of the section, wherein it is provided that if any hurt is caused in the process of such act, the offender shall be liable to punishment, provided for the hurt caused, in addition to the imprisonment and fine, mentioned in part first. This is a case of attempt to commit Qatl-e- Amd, which entails punishment of ten years. While punishment for injuries caused to the victim shall be in addition to that. So the principle laid down in Ali Muhammad's case, (supra), is not applicable to the instant case.

10.For the reasons discussed above, this bail petition being devoid of merits is hereby dismissed. However, the prosecution is directed to submit complete Challan within a fortnight and the trial Court shall conclude the trial within a period of four months, positively.

M.W.A./13/P Bail dismissed.