2012 PLP 550 (YLR)

SARDAR MUHAMMAD SHAMIM KHAN, J.

Muhammad Asif and Muhammad Aslam, petitioners seek post-arrest bail in case F.I.R. No.268 of 2010 dated 26-7-2010 for the offence under sections 302, 324, 148 and 149 of P.P.C. registered at Police Station Saddar Mian Channun, District Khanewal through two separate bail petitions (Criminal Miscel-laneous 5002-B of 2010 and 596-B of 2011). As both petitions are outcome of one and the same F.I.R., so, these are being decided through this single order.

2. Precise allegation against Muhammad Asif, petitioner as narrated in the F.I.R. was that he was armed with pistol and inflicted BUTT blow which landed on the upper lip of Faiz Muhammad, P.W. whereas allegation against Muhammad Aslam, petitioner was that he was armed with rifle and fired at Dur Muhammad, deceased, which landed on the calf of his right leg on its front side.

3. Learned counsel for Muhammad Asif, petitioner submits that there was no allegation against Muhammad Asif, petitioner that he inflicted any injury on the person of any deceased; that only allegation against Muhammad Asif, petitioner was that he inflicted BUTT blow hitting on the upper lip of Faiz Muhammad, injured P.W; that Faiz Muhammad was medically examined and according to his Medico-Legal Report, injury on his lip was declared Shajjah Khafifa, which comes within the purview of bailable offences; that although Muhammad Asif, petitioner was allegedly armed with pistol yet he did not fire at any-body; that alleged pistol was not recovered from the possession of Muhammad Asif, petitioner during investigation and police has also come to the conclusion that petitioner did not participate in this occurrence and he was declared innocent during investigation so, he has prayed that while accepting this petition, Muhammad Asif, petitioner be admitted to post-arrest bail.

4. Learned counsel appearing on behalf of Muhammad Aslam, petitioner submits that there was specific allegation against Muhammad Aslam, petitioner that he fired with rifle which landed on the calf of right leg of Dur Muhammad, deceased from its front side but this allegation is falsified by post mortem examination report of Dur Muhammad, deceased as doctor did not observe any fire-arm injury on the calf of right leg of Dur Muhammad, deceased on its front side; that Muhammad Aslam, petitioner was not connected with the motive part of prosecution story; that the alleged rifle was not recovered from the possession of the petitioner during investigation; that petitioner was arrested on 19-9-2010 and he is behind the bars since his arrest without lawful justification; that Muhammad Jamil from the accused party was also murdered during this occurrence at the hands of complainant party, so, it was a case of two versions; that complainant of this case filed a private complaint regarding this occurrence; whereby number of accused persons in F.I.R. which was fifteen was increased upto twenty four by him, changing the version given in F.I.R., so he has prayed that petition of Muhammad Aslam, petitioner be accepted and he be allowed post-arrest bail. Reliance has been placed on Mumtaz v. State 2002 YLR 3045, Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125) and Walayat and another v. The State 1984 SCMR 530.

5. Learned D.P.-G. and learned counsel for the complainant have contended that both petitioners were specifically nominated in the F.I.R.; that although there was no allegation against Muhammad Asif, petitioner that he caused any injury on the person of the deceased, yet he came armed with pistol at the place of occurrence, so he was also vicariously liable for the murder of Dur Muhammad and others; that the opinion of police regarding the innocence of Muhammad Asif is not binding on the Court; that at the time of post mortem examination, Doctor observed three fire arm injuries on the right and left leg of Dur Muhammad, deceased, so, it cannot be stated at this stage that injury attributed to Muhammad Aslam, petitioner was in conflict with medical evidence; that petitioners have committed heinous offence which falls within the purview of prohibitory clause of section 497 of Cr.P.C., so they were not entitled to the grant of bail.

6. I have heard the arguments advanced by the learned counsel for the parties and perused the record.

7. Allegation against Muhammad Asif, petitioner in the F.I.R. was that he was armed with pistol and inflicted BUTT blow on the lip of Faiz Muhammad, injured P.W. Faiz Muhammad was medically examined by the doctor and injury attributed to Muhammad Asif, petitioner was declared Shajah Khafifa, which comes within the ambit of bailable offence. There is no allegation against Muhammad Asif, petitioner that he inflicted any injury on the person of any of the deceased despite the fact that he was allegedly armed with pistol. During investigation pistol was not recovered from the possession of Muhammad Asif, petitioner; and police also came to the conclusion that Muhammad Asif, petitioner did not take part in this occurrence and he was declared innocent by the police.

8. So far as Muhammad Aslam, petitioner is concerned, allegation against him that he fired with his rifle which landed on the calf of right leg of Dur Muhammad, deceased from its front side was falsified by the postmortem examination of Dur Muhammad, deceased as doctor did not observe such injury on his right leg. Perusal of postmortem examination report of Dur Muhammad, deceased reveals that injury No.1 was on the right knee joint and upper part of right leg. This injury was attributed to co-accused Muhammad Yousaf. Injury No.2 on the back of right leg just below the right knee was attributed to co-accused Muhammad Shafi and this injury was not caused by rifle as according to the doctor pallets punctured badly skin deep tartia muscles vessels and upper part of tibia found badly fractured and found huge haematoma, whereas injury No.3 was on left knee of the deceased Dur Muhammad. During investigation rifle was not recovered from the possession of Muhammad Aslam, petitioner. Muhammad Jamil from the accused side also lost his life during the occurrence. The complainant has also filed private complaint regarding this occurrence increasing the number of accused persons.

9. For what has been discussed above, both petitions (Criminal Miscellaneous 5002-B of 2010 and Criminal Miscellaneous No.596-B of 2011) are accepted and petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.2,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. N.H.Q./M-849/L Petitions accepted.