2002 PLP 168 (YLR)

Ahmad Shah Khaga for the Complainant. Manzoor Ahmad Bhatti for the State. Through the present petition Muhammad Aslam son of Umar Ali and Muhammad Shafiq son of Muhammad Rafiq, petitioners, have sought their post-arrest bail in a case F.I.R. No.91 of 2001 dated 8-5-2001 registered at Police Station Chhabkalan, District Khenewal, for offence, under sections 302, 148, and 149, P.P.C. and subsequently offences under sections 337-F (i), 337-A(i) and 337-L(ii), P.P.C were added.

2. The brief facts as alleged in the F. I. R. are that Nasir Ali son of the complainant was fatally wounded by Muhammad Hussain and Abdul Majeed co accused. It is also alleged in the F.I. R. that the complainant and his son Muhammad Iqbal also received two injuries each on their persons. Nine persons were involved as accused in the present case.

3. The precise allegation against Muhammad Aslam, according to F.I.R., is that he was armed with a rifle and had been firing aimlessly, while the allegation against Muhammad Shafiq, petitioner No. 2, is that he caused single blow with hatchet, which landed on the head of Muhammad Iqbal P.W. The petitioners after their arrest in the present case are in Judicial Lock-up and challan/report under section 173, Cr.P.C. has been sent up. Copies of the statements under section 161, Cr.P.C. have been supplied.

4. The learned counsel for the petitioners states that Muhammad Aslam, petitioner, though armed with rifle has caused injury to none. He also states that Muhammad Shafi-petitioner No. 2, according to F.I.R., who has, allegedly armed with hatchet, caused blunt weapon injury on the person of Muhammad Iqbal, which according to medical report was declared to be "Shajjah-i-Khafifah". He further contends that in the abovementioned circumstances, it cannot be said that these petitioners had any intention to cause murder of any person. He has also contended that both the petitioners were declared innocent during investigation and no recovery was effected from them.

5. On the other hand, the learned counsel for the complainant contested the grant of bail to the petitioners. He has argued that the petitioners alongwith other co-accused with their common intention caused murder of an innocent person and during the occurrence Muhammad Iqbal brother and Allah Din father of the-deceased have also received injuries. He has also contended that the matter was reported to the police without any delay. Names and roles as assigned to the petitioners are mentioned in the F.I.R. and the trial is most likely to start within a short time, therefore, it would not be proper in the circumstances to release the petitioners on bail. The learned counsel appearing on behalf of the State has adopted the arguments advanced by the learned counsel for the complainant.

6. I have heard the learned counsel for the parties and perused the record. It is an admitted fact that Muhammad Aslam petitioner No. 1, did not cause injury either to the deceased or to any P.W. It has been conceded by the learned counsel for the State that no empty has been recovered from the place of occurrence and no recovery of gun has been effected from the petitioner Muhammad Aslam. As far as Muhammad Shafiq-petitioner No. 2 is concerned, according to F.I.R., he was shown to be armed with hatchet and caused injury to Muhammad Iqbal P.W. brother of Nasir Ali deceased. It has been noticed that it was no where mentioned in the F. I. R. that Muhammad Shafiq-petitioner used his hatchet from blunt side. Even if the allegation is admitted to be correct then a person, who has a hatchet in his hand and uses its blunt side can by no stretch of imagination be said to have come with intention to cause murder of a person. No recovery ha been effected from Muhammad Shafiq-petitioner as well. The injury allegedly caused by Muhammad Shafiq petitioner has been declared to be "Shajjah-i Khafifah" after the medical examination. Admittedly both the petitioners were declared innocent during investigation and a discharge report was also reported vis-a-vis the petitioners, however, the Magistrate did no, agree with that report.

7. As far as the argument of the lean counsel for the complainant that the copier the statements of the witnesses have be supplied to the accused and the trial is likely to commence within near future, is concerned, suffice it to say that bail cannot be withheld as punishment and if the case of the petitioners falls within the purview of further inquiry then the bail should not be withheld, even if the trial is in progress. Reliance is replaced upon the case reported as Muhammad Ismail v. Muhammad Rafiq and others (PLD 1989 SC 585).

8. In these circumstances, the allegations as against the petitioners need further probe and inquiry within the purview of subsection (2) of section 497, CI.P.C., therefore, the petitioners are granted bail, subject to their tendering bail bonds in the sum of Rupees fifty thousand each, with one surety each in the like amount to the satisfaction of the trial Court. Disposed of. H.B.T/M-954/L Bail allowed.