1979 P Cr (PLP)

2. Two of the co-accused, namely Javid Iqbal and Iftikhar Ahmad were bailed out by this Court on 18-7-1978 in Criminal Miscellaneous No. 2498-B of 1978 on the ground that on the date of occurrence their ages were below 16 years.

3. The petitioners filed application for bail before the Sessions Court, which fell for adjudication on file of learned Additional Sessions Judge, Bahawalnagar who vide his order dated 5-8-1978 declined to admit the petitioners to bail. The petitioners have consequently moved this Court for grant of bail to them. According to the F. I. R., the two petitioners were armed with hatchets. The complainant, his wife Mst. Rashidan and Farzand Ali P. Ws. suffered injuries. As per averments in the F. I. R. only Mst. Rashidan was inflicted an injury with a sharpedged weapon which has been declared grievous.

4. The learned counsel for the petitioners has argued :- (a) That in the F. I. R. no specific part has been assigned to the petitioners and only generalized allegations have been levelled against them. Mst. Rashidan suffered only one injury said to have been caused with a sharp-edged weapon. The petitioners and two other co-accused were armed with hatchets whereas the 5th was armed with a gun. It cannot be said that out of the 4 co-accused, who caused the blow in question with his hatchet to Mst. Rashidan. (b) That in respect of the same occurrence, the petitioner Barkat Ali has got a case registered against the complainant and 4 others, under sections 326, 325, 324, 148 and 149, P. P. C. which is under investiga tion. In this case Barkat Ali petitioner suffered 12 injuries out of which two injuries have been declared as grievous and were caused by sharp-edged and blunt weapons. The other petitioners Asghar Ali was inflicted 11 injuries out of which one is grievous. Three injuries were inflicted to the other co-accused Iftikhar, out of which one has been declared grievous as per medico-legal report. This cross case is still under investigation and that therefore it is yet to be ascertained as to who is the aggressor. The learned counsel has referred to Mumtaz Ahmad and others v. The State 1976 P Cr. L J 1064 and Ali Ahmad v. The State 1976 P Cr. L J 1323 in support of his submissions. (c) That the complainant suppressed the fact of the cross case and that the injuries were suffered by the petitioner party.

5. On the basis of these premises, it was further submitted that the case needs further inquiry into the guilt of the petitioners making it fall within the ambit of subsection (2) of section 497, Cr. P. C. It is on these grounds that the learned counsel for the petitioners has implored the extension of concession of bail to the petitioners.

6. The learned counsel for the State on the other hand has opposed the bail application. The pendency of the cross case is not denied by him. He has, however, taken the stand that in the complaint filed against petitioners, challan has already been filed in the Court whereas the cross case is still at the investigation stage. According to the learned counsel unless the investigation is completed and challan submitted to the Court in the cross case, it cannot be said that the matter requires further inquiry in contemplation of section 497 (2), Cr. P. C. He has also referred to the statements of the P. Ws. under section 161, Cr. P. C. to submit that Muhammad Anwar complainant was also injured with the sharp-edged weapon which has been attributed to the petitioners. Additionally, it is urged that the case against the petitioners having been registered under section 307, P. P. C., section 497(1), Cr, P. C. will stand in their way for grant of bail to them.

7. I have persused the record and given my anxious consideration to the arguments advanced by the learned counsel for the parties. According to the F. I. R. both the petitioners were armed with hatchets. Injuries were suffered by the complainant, his wife Mst. Rashidan and Farzand Ali P. W. F. I. R. does not disclose that any other P. W. was injured. Out of the three persons aforesaid, only Mst. Rashidan is shown to have suffered an injury with a sharp-edged weapon, as is borne out from the orders of the learned Additional Sessions Judge. Admittedly the petitioners and two other co-accused were armed with hatchets. Thus there is some force in the contention of the learned counsel for the petitioners that it is yet to be ascertained that out of the four accused, who caused the injury to Mst. Rashidan. In the F. I. R. there are only generalized allegations against the petitioners and no specific allegation appears to have been made against them. The learned State counsel' has rightly conceded that a cross case is pending investigation. I am not inclined to share his view that the stage for determination was to whether or not further inquiry is needed into the guilt of the petitioners, will arrive only when a challan has been submitted to the Court in the cross case. The fact that a cross case was got registered by the petitioner No. 1 and he along with petitioner No. 2 and Iftikhar co-accused suffered injuries at the hands of the opposite-Party is sufficient to warrant an inference that a further inquiry is needed into the guilt of the petitioners and it is yet to be ascertained as to which of the two parties is the aggressor. I am, therefore, inclined to agree with the learned counsel for the petitioners that ex facie the case is covered by section 497(2), Cr. P. C. and the petitioners are entitled to bail.

8. As a result of the above discussion, the petitioners are admitted to bail, subject to furnishing of the bail bonds in the sum of Rs. 15,000 by each of them with two sureties in the same amount in each case, to the satisfaction of Assistant Commissioner, Fort Abbas. Petition accepted.