2008 PLP 971 (MLD)

MUHAMMAD AHSAN BHOON, J.

The petitioner seeks post arrest bail in case F.I.R. No. 915 of 2007, dated 25-10-2007 offence under sections 302/324/34, P.P.C. registered at Police Station Khurarrianwala District Faisalabad.

2. As per F.I.R., the prosecution case according to the statement of the complainant is that on 25-10-2007 at about 10-00 p.m. on the marriage ceremony of Mushtaq Ahmad son of Shafqat Rasool caste Arain resident of Deli, his kith and kins and friends were coming for Mehndi. Abdul Shakoor son of Rehmat alias Gulu armed with .30 bore pistol, Aatif Rashid son of Abdul Rashid armed with .12-bore gun double barrel, Irfan son of Bashir armed with Repeater .12 bore castes Arain residents of Deh had been firing with their respective weapons in the said ceremony. The complainant with Nadeem Hussain and Ghulam Murtaza brothers, Muhammad Raza son of Anwar-ul-Haq, Muhammad Kashif son of Anwar-ul-Haq caste Arain residents of Deh and many other persons were present in the said ceremony near the house of Mushtaq Ahmad in the street. All of a sudden, Nadeem Hussain and Muhammad Raza received injuries on their faces and necks and they fell down on the ground. The occurrence was witnessed by the complainant along with his brother Ghulam Murtaza and Muhammad Kashif son of Anwar-ul-Haq. The injured Nadeem Hussain and Muhammad Raza were taken to Allied Hospital Faisalabad for treatment where Nadeem Hussain, brother of the complainant, succumbed to the injuries. Umair Raza was admitted in the hospital. Leaving the dead-body of Nadeem Hussain in the Ihata of Allied Hospital, in the escort of Ghulam Murtaza and Muhammad Kashif, the complainant was going to Police Station when Asghar Ali S.-I. met him on the way. Hence the F.I.R.

3. Learned counsel for the petitioner contends that no specific role is attributed to the petitioner, no. motive has been mentioned in the F.I.R. and it was an accidental occurrence. During the course of investigation, it was concluded by the Investigating Officer that Muhammad Irfan co-accused was responsible for inflicting injuries and that too in an accidental manner and that the injured P.W. has exonerated the petitioner and sworn affidavit in this regard.

4. Learned DPG assisted by the learned counsel for the complainant has opposed this bail petition and states that this is a case of promptly lodged F.I.R. All the witnesses support the prosecution version. No doubt that during the investigation co-accused Irfan was held responsible for firing shots hitting deceased but accused petitioner is equally responsible and recovery of pistol has been effected from him.

5. After hearing the learned counsel for the parties and perusing the record I find that admittedly, as per F.I.R., it was an occurrence wherein the firing was made by the accused in Mehndi ceremony and deceased sustained injuries accidentally but later on, the complainant tried to twist the story in his own way but during the investigation it was concluded by the Investigating Officer that accused Irfan was responsible for fire shot hitting the deceased and that too was accidentally. Keeping in view the facts and circumstances of the case as explained in the F.I.R. as well as surfaced during the course of investigation, prima facie it was mistake of an act of accused of F.I.R. wherein deceased (Nadeem Hussain) and injured P.W. (Umair Raza) sustained injuries, so the application of section 302, P.P.C. requires further inquiry. I may observe here that `Qatl-i-Khata' has been defined in section 318, P.P.C. which reads as follows:- "

318. Qatl-i-Khata. Whoever, without any intention to cause the death of, or cause harm to a person, causes death of such person, either by mistake of act or by mistake of fact, is said to commit Qatl-i-Khata." The above quoted provision shows that an act depicts intention of doer who is supposed to know possible consequences of his act but at the same time doer of a rash and negligent act shows his recklessness and indifference about its consequences and the circumstances of the above facts show that the case falls within second category.

6. The opinion of police though was not binding upon the Court but at the same time was relevant circumstance to be taken into consideration while deciding bail application when same also get corroboration from the statement of complainant as mentioned in the F.I.R. The question whether, the injured died due to an act of negligence or accidentally murdered by the accused shall be determined after the trial. Hence this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.100,000 (Rupees One Lac only) with one surety in the like amount to the satisfaction of the learned trial Court. M.H./S-17/L Bail granted.