1980 P Cr (PLP)

Date of hearing : 7th November, 1979. This is an application for bail after arrest, moved by Manzoor Ahmad who, along with three others, is involved in a case under sections 302, 452, 448 and 34, P. P. C., registered on 13th June, 1979 at Police Station, Misri Shah,. Lahore.

2. The relevant facts of the case are that the complainant‑party obtained warrant of , ejectment against Mohammad Ali, father of the petitioner, from a portion of Maqbool's building, situated at Aziz Road, Lahore, and brought on the spot a bailiff on 13th June, 1979 for execution of the warrant of ejectment. The bailiff executed the warrant and Mohammad Ali removed his household effects from the disputed property. Thereafter at 3‑00 p.m., it is alleged, the petitioner picked up altercation with the opposite‑party which led the petitioner, his brothers Zia and Khalid enraged. Mohammad Ali exhorted them to do away with the opposite‑party. Zia ‑ accused grappled with Karam Ilahi deceased and Khalid accused inflicted chhuri blow to. him. Karam Ilahi fell down. After this the petitioner grappled with Shaukat Ilahi complainant, and Khalid gave chhuri blow which caused a simple injury on his left arm. The petitioner applied for bail but the same was rejected on 17th September, 1979 by the learned Additional Sessions Judge; Lahore.

3. Learned counsel for the petitioner has contended that there is no allegation against the petitioner having caused any injury to the deceased. He further submitted that the perusal of the F.I.R. shows that the deceased had already received injury from Khalid accused and fallen down and it was thereafter that the petitioner is said to have grappled with the com plainant. According to him, his role starts after the event of alleged murder of the deceased and, therefore, he cannot be said to have shared common intention of the commission of murder with the other accused. He also pointed out that the occurrence in this case had taken place at the spur of the moment without premeditation. It was next contended that there being civil litigation between the parties the possibility of false implication of the petitioner cannot be ruled out, particularly when he was empty‑handed and did not actively participate in the occurrence and caused injury to none. He also stated that Mohammad Ali co‑accused had already been released on bail by the learned Additional Sessions Judge, Lahore. He further submitted that the case of the petitioner is covered by the principle laid down in Mohammad Akbar v. State (1978 S C M R 7) and Basharat Hussain v. Ghulam Hussain (1978 S C M R 357).

4. Learned counsel for the State and the complainant opposed the application and contended that the petitioner has facilitated. the infliction of injury sustained by the complainant. They relied on Hakam Ali and. others v. State (1979 S C M R 114), for the proposition.

5. It is an admitted fact that the petitioner did not inflict ,arty injury to the deceased Karam Elahi or to any other prosecution witness. The only role attributed to him was that he by grappling with the complainant, facilitated Khalid accused to inflict simple injury on the hand of the com plainant. It is true that the grappling incident attributed to the petitioner took place, after the deceased had received fatal injury, on his person and fell down. There is no allegation of premeditation on the part of the accused in the F.I.R. In Muhammad Akbar's case, cited above, although Fateh Khan and Ahmad Nawaz accused did cause simple injuries to the complainant, Their case was considered distinguishable by the Supreme Court from the rest of the accused who had caused injuries to the deceased. Similarly in Basharat Hussain's case the allegation was that the accused Ghulam Hussain in that case held the deceased when his son Abdul Qayyum gave fatal blow to the deceased on his head. Ghulam Hussain, although facilitated the murder of the deceased by holding him, was held entitled to bail as his involvement in the case required further inquiry.‑

6. In the instant case, neither the petitioner held the deceased so as to facilitate his mur~r, nor ay injury has been attributed to the petitioner having been caused to the deceased or any other person.

7. Hakam Ali's case; cited by the learned counsel for the. complainant appears to be distinguishable from the facts of the instant case, inasmuch as in the instant case, the occurrence took place at the spur of the moment and the grappling attributed to the petitioner .was subsequent to the event of the receipt of fatal blow by the deceased, whereas in that case the petitioners‑accused were stated to have accompanied Mohammad Azam and Mian Khan accused when they attacked the com plainant party. In these circumstances the question whether the petitioner shared common intention with the co‑accused for the murder of Karam Ilahi, requires further inquiry, as contemplated under section 497 (2), Cr. P. C.

8. In the light of the above discussion and following with respect the principle laid down by the Supreme Court in Muhammad Akbar v. State and Basharat Hussain v. Ghulam Hussain I direct the enlargement of the petitioner on bail provided he furnishes security in the sum of Rs. 40,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Lahore. Bail granted.