1977 P Cr (PLP)

Criminal Miscellaneous No. 2913/B of 1976, decided on 19th August 1976. ‑‑‑ S. 497‑Name of petitioner included in first information report as one of assailants and injury on chest of deceased caused with a chhuri attributed to petitioner which in turn supported by pro secution witnesses, medical 'evidence and evidence of recoveries

Bail declined, in circumstances. Sh. Zahurul Haq for Petitioner. Malik Allah Yar for the State. A case is registered against the petitioner alongwith others under section 302/307/34, P. P. C. The allegation against the petitioner is that he was armed with a chhuri and he caused injuries therewith to the deceased in this case. The occurrence was witnessed by Rashid Ahmad nephew of f'' the deceased who had accompanied the deceased and had also lodged the st.'" F. I. R. This Rashid Ahmad was himself injured in the course of occurrence at the hands of the accused party. Besides Rashid Ahmad there are two other eye‑witnesses mentioned in the F. I: R., namely Sarwar and Muhammad Amir who are residents of the area. According to the version of these three eye‑witnesses the petitioner was armed with a chhuri and he had injured the deceased therewith although Muhammad lqbal co‑accused had caused the fatal knife blow in the abdomen of the deceased. The injury attributed to the petitioner was caused on the chest of the deceased and according to the learned counsel it was a simple incised injury.

2. The main argument of the learned counsel is that on the very day of occurrence at 9‑00 p. m. the dying declaration of the deceased was recorded at' the hospital while he was still alive, by a Magistrate, and in that dying declaration not only the motive described is different but even the version is different. In the dying declaration it is not mentioned that Rashid Ahmad had accompanied the deceased. According to the learned counsel the petitioner is not mentioned as one of the members of the accused party. It is stated in the dying declaration that one of the accused persons was armed with a knife and the rest of them were armed with dangs and they attacked the deceased. Learned counsel submits that the dying declaration does not mention the name of the petitioner. In the F. I. R. Muhammad lqbal co‑accused was armed with a knife, Rana Aftab co‑accused was stated to be empty‑handed and Zamir Khan co‑accused was stated to be armed with a pistol whereas the petitioner was stated to be armed with a chhuri. It is argued by the learned counsel that the version given in the F. I. R. is different in respect of motive. In the F. I. R. it is stated that the accused party attacked the deceased because Rashid Ahmad had told them not to tease Mst. Nawab alias Bibi a prostitute of the area as she was sister of Sarwar P. W. who was a friend of Rashid Ahmad. In the F. I. R. it is stated that it was for this reason that the accused party became annoyed and attacked the complainant side. It is pointed out by the learned counsel that in the dying declaration the motive described is that the accused party were annoyed with the deceased because at the Bhang shop, he managed to get the Bhang earlier than them and this gave them a cause of grievance. Be that as it may the prosecution ease as given in the F. I. R. prima facie includes the petitioner as one of the members of the accused party who gave a chhuri injury on the chest of the deceased. The version in the F. I. R. is alleged to be supported b Sarwar and Muhammad Amir P. Ws. It is further alleged to be supported by the medical evidence and the recoveries: It is also stated by the learned counsel that the petitioner is aged 16 years. A person aged 16 years in my view is competent to cause a knife injury to a victim and it is the discretion of the Court only to consider this ground for the release of such an accused person on bail. I have asked the Investigating Officer and the State counsel if there is any evidence on the record from, which such an inference could be drawn. They have not got any evidence to the effect that the petitioner is a minor or as that 16 years old. In any case I d not wish to comment on the nature of evidence in this case but in m view it is not a fit case for grant of bail. The petition is accordingly, dismissed. Petition dismissed.