1995SCMR310 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.‑‑‑The abovementioned two criminal petitions arise from the order of a learned Judge in Chambers of Lahorr, High Court, Rawalpindi Bench, dated 27‑5‑1994 whereby the learned Judge granted bail to Haji Nazir, Muhammad Riasat and Muhammad Habib while. refusing bail to co‑accused Rehmat Hussain in a case registered against all of them alongwith four other accused persons (F.I.R. No. 127 dated 17‑6‑1994) for committing murder of one Muhammad Zamir and causing injuries to one Tahir Abbas. Criminal Petition'No. 94 of 1994 is filed by the complainant Mehmood Akhtar for cancellation of bail granted to Haji Nazir, Muhammad Riasat and Muhammad Hahbib whiie Criminal Petition No. 105 of 1994 is filed by Rehmat Hussain seeking bail in the above case which was declined by the learned Judge in Chambers. It may be mentioned here that respondents in Criminal Petition No. 94 of 1994, who were accused alongwith others in F.I.R. No. 127 dated 17‑6‑1994, have also filed a private complaint in respect of the same incident against the complainant party under sections 324/148 and 149, P.P.C. in which the Magistrate Section 30, Rawalpindi, after holding preliminary enquiry issued summons to the complainant in F.I.R. No. 127 to face charges under section 337‑F(i) and 33 7‑A (ii), P.P.C. The learned Judge in Chambers taking into consideration that the incident reported vide F.I.R. No. 127 dated 17‑6‑1994 was in fact a cross‑case, admitted Haji Nazir, Muhammad Riasat and Muhammad Habib to bail on the following grounds. , "After summoning of the complainant party to face trial it has become a case of cross version. Haji Nazir Ahmad, Muhammad Riasat and Muhammad Habib petitioners were stated to be empty‑handed. They are not alleged to have caused any injury to the deceased or Tahir Abbas P.W. The injuries of Tahir Abbas P.W. which are attributed to Muhammad Siddique petitioner are stated to be simple in nature. He is not alleged to have caused any injury to the deceased.

5. In the above circumstances, their case is considered to be one of further inquiry. Accordingly, they are admitted to bail in the sum of Rs.25,000 with two sureties in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Rawalpindi." Mr.. Muhammad Munir Peracha, the learned counsel for the petitioner in Cr.P. 94/94, contended that the fact that Muhammad Habib and Nazir Ahmed were injured during the incident, established their presence at the scene of offence and therefore they could not be granted bail in the case which was registered against them alongwith others under sections 302/148 and 149, P.P.C. The learned counsel also contended that mere fact that there was cross version of the same incident, did not mean that the accused persons who were charged under sections 302/148 and 149, P.P.C. were entitled to bail as of right. From reading the F.I.R. and the cross version given in the private complaint filed by the accused party in F.I.R. No. 127 dated 17‑6‑1994, it appears that the incident which took place on 17‑6‑1994 during the 'Urs' of Ganja Peer, was in fact a fall out of the incident which occurred during the celebration of 'Urs' on 16‑6‑1994. No doubt Muhammad Zamir from the complainant side lost his life in the unfortunate incident but keeping in view the circumstances of the case, it could not be said that the learned Judge in? Chambers did not exercise his discretion properly in admitting Haji Nazir, Muhammad Riasat and Muhammad Habib to bail, who were shown as empty? handed in the F.I.R. and were attributed no injury to the deceased. We, accordingly, find no ground to interfere with the order of the learned Judge in Chambers in so far it granted bail to Haji Nazir, Muhammad Riasat and Muhammad Habib in the case registered against them under F.I.R. No. 127 dated 17‑6‑1994. The Criminal Petition No. 94 of 1994 filed by the complainant for cancellation of bail granted to these accused persons is accordingly rejected. In the connected Criminal Petition No. 105 of 1994, Rekhmat Hussain, one of the co‑accused person in F.I.R. No. 127 dated 17‑6‑1994, has prayed for bail which was declined by the learned Judge in Chambers for the following reasons:‑‑ "So far as Rekhmat Hussain petitioner is concerned he is not considered entitled to bail, for, he is alleged to have caught hold of the deceased before he was given injuries by his co‑accused. He is alleged to have facilitated the crime. His application is, therefore, dismissed." The learned counsel for the petitioner (C.P.105/94) has relied on the case Basharat Hussain v. Ghulam Hussain etc. (1978 SCMR 357) wherein this Court refused to interfere with the order of High Court granting bail to accused person in a case who had held the deceased to facilitate the murder by the co‑accused. While refusing leave to appeal in the above case, this Court? made the following observations:‑‑ "It is quite clear from the F.I.R. that respondent No. 1, was alleged to have held the deceased when his son Abdul Oayyum hit the deceased on the head. Respondent No. 1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry, and the petitioner was entitled to bail." The above‑quoted observations fully apply to the circumstances of the present case and we, accordingly convert Petition No. 105 of 1994 into appeal and also the same and admit the appellant Rekhmat Hussain to bail in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of trial Court. M.BA./M‑2183/SC???????????????????????????????????????????????????????????????????????????? Appeal allowed.