1988 P Cr (PLP)

‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss.302, 307 m 148/149‑‑Bail, grant of‑‑Occurrence a sudden flare up‑‑Seven co‑accused found innocent and discharged by Magistrate‑ Accused not firing at accessed‑‑Injuries on witnesses found simple‑‑Bail allowed in circumstances. Dr. Khalid Ranjha for Petitioner. Aftab Shirazi for the State. This is a petition under section 497, Cr.P.C. by Khawar Ijaz, petitioner, for bail in respect of a case. instituted against him and eight others under section 302/307/148/149, P.P.C. at Police Station Karana, District Sargodha, on 8‑6‑1986.

2. The prosecution case in brief is that on 8‑6‑1986 at about 4‑30 p.m. when Abid Hussain, deceased, was about to leave his house to irrigate his fields, he was accosted by the six accused. Khawar Ijaz, petitioner, was armed with a revolver and a gun, Tasawar Ijaz alias Kaka and Asif, co‑accused, were both armed with revolvers, Nawazish alias Haideri and Muhammad Afzal, co‑accused, were both armed with guns and Mst. Bibi was empty‑handed. The accused apprehended Abid Hussain, deceased. Mist. Bibi, co‑accused, held the deceased in her Japha, where after Tasawar Ijaz alias Kaka co‑accused, fired at him with his revolver, which shot hit the deceased on his lower left chest. The deceased fell down. Khawar Ijaz, petitioner, then fired at Khadim Hussain complainant with his gun; which shot hit him on the back of his left hand and left forearm. Sajjad Hussain P.W. ran up and apprehended Khawar Ijaz, petitioner, and snatched the gun away from him and felled him to the ground, during which process the petitioner fired at him with his revolver, which shot glanced his forehead. Khawar Ijaz, petitioner, then freed himself and ran away. Khadim Hussain complainant snatched the revolver from Taswar Ijaz alias Kaka, co‑accused, whereafter Asif, Nawazish alias Haideri and Muhammad Afzal, co‑accused, fired repeatedly in the air. The motive for the occurrence was that 7/8 months back, Tasawar Ijaz alias Kaka, co‑accused had trespassed into the house of Allah Loke Kashmiri and there had insulted his womenfolk. A case under section 452, P.P.C. had been instituted against the said co‑accused. Khadim Hussain complainant was assisting Allah Lake in this case. Still further, on 28‑5‑1986, Tasawar Ijaz alias Kaka co‑accused, had assaulted one of the witnesses of the said Allah Loke in the District Court premises in Sargodha, in respect of which a case had been instituted against the said co‑accused under section 506, P.P.C. Khadim Hussain complainant and Muhammad Akram etc. were assisting the complainant in that case, Due to this assistance rendered in the criminal cases, the accused, at the instigation of Muhammad Sarwar, Muhammad Akbar and Muhammad Aslam, co‑accused, had launched the murderous assault.

3. I have heard the arguments of the learned counsel for the petitioner and the State and have also perused the police record. In the re‑investigation conducted by the D.S.P., Saddar on 2‑6‑1986 it was found that the occurrence was the outcome of a quarrel which had taken place between Mst. Shahnaz, a girl from the complainant's side and Mst. Bibi, co‑accused, from the side of the accused, as a result of which both the parties abused and assaulted each other. Whilst allowing bail to Mst. Bibi, co‑accused, the learned Additional Sessions Judge accepted the position that the occurrence was the result of a sudden flare up between the parties. Seven co‑accused in this case have been found innocent by the police and have been got discharged through the order of a Magistrate. Khawar Ijaz, petitioner, did not fire at or injure Abid Hussain, deceased. On behalf of Khawar Ijaz, petitioner, it is submitted that the alleged fire‑arm injuries on the person of Khadim Hussain complainant and Sajjad Hussain P.Ws. are self suffered and that when a petition was made for the re‑examination of these two witnesses, the said witnesses declined to co‑operate. It is further submitted that had such fire‑arm injuries been suffered, in the manner as alleged, they would have been much deeper and effective. The submission of the learned counsel for the petitioner that the occurrence is the result of a sudden flare up and that the provisions of section 34, P.P.C. do not apply to the case, is not without substance. The contention of the learned counsel that the injuries suffered by Khadim Hussain and Sajjad Hussain P.Ws. are self‑suffered, would require examination at the trial. In any case, the injuries suffered by these witnesses appear to be simple. Without going into the record and without giving any finding in the matter, I would hold that Khawar Ijaz, petitioner, is entitled to be released on bail.

4. For the foregoing reasons, this petition is accepted and Khawar Ijaz, petitioner, is released on bail, subject to his furnishing security in the sum of Rupees thirty thousand (Rs:30,000) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Sargodha. S.A./K‑103/L Bail granted.