P L D 1986 Lahore 11 (PLP)

Mosoud Mirza for Petitioners. Abdul Waheed Khan for the State. This is a petition for bail after arrest moved by six petitioners who are accused in a case under section 302/307:148/149, P. F. C. registered at Police Station Qadirpur. Tehsil and District hang vide F. I. R. No 72/47, dated 6‑5‑1984 by order dated 12‑7‑1984. My learned brother Kamal Mustafa Bokhari. J, rejected the application qua Shaman and Ramzan petitioners in limine as they "allegedly used their hatchets and caused injuries to the deceased" and issued notice to the State as regards) the remaining four petitioners viz. Bahadas, Haider, Murad and Warrayam. By this order, I am disposing of bail application of these four petitioners.

2. Prosecution case as disclosed in the F. I. R. is that on 6‑5‑1984 at about Peshiwela, Sultan complainant alongwith Riaz, Ghulam, Salehoon and Amir were cutting the wheat crop in their field when Mst. Kaniz Fatima daughter of Salehoon came down grazing her cattle. Some of the cattle went astray into the land of Shabbir under the cultivation of Haider petitioner whereupon Murad petitioner abused Mrt. Kaniz Fatima. The complainant's brother Ghulam restrained Murad petitioner from abusing Mst. Kaniz Fatima on which Murad threw a stone at Ghulam who ran towards Murad but the complainant intervened. Murad' petitioner then went away threatening that he would avenge the insult. At about 3‑30 p m. the same day when the complainant alongwith Salehoon etc, aforementioned were making the bundle of the wheat, Shaman. Ramzan and Haider petitioners armed with hatchets, Bahadar and Murad peti tioners armed with lathis and Warray am petitioner armed with Phawara reached there and opened the attack on the complainant party. Shaman accused gave a hatchet blow to Salehoon at the back of his head which is said to have proved fatal. Ramzan accused gave another injury to Salehoon with blunt side of the hatchet. Warrayam petitioner gave a Phawara blow which landed on the left cheek of Salehoon. Warrayam gave another blow with his Phawara to Ghulam on his bead. Haider petitioner gave a hatchet blow which hit Mst. Kaniz Fatima on her left hand. Bahadar petitioner caused injury with his lathi to Amir on his head and Murad petitioner injured Riaz and Ghulam of the complainant party. Salehoon later on, died in the hospital.

3. All the six accused aforementioned who were arrested on or about 9‑5‑1984 moved an application for bail which was dismissed by the learned Sessions Judge, Jhang by his order dated 17‑6‑198. on the ground that they have been named in the F. I. R. and specific role has been attributed to them and that it was a day time occurrence and the F. I. R. was lodged on the same day. The learned Sessions Judge further held that "all the petitioners are alleged to have caused injuries to Salehoon deceased as well as the other injured persons". Having failed to get the bail from the learned Sessions Judge, petitioners approached this Court for the grant of bail.

4. I have heard the learned counsel for the petitioners and the State, It is contended by the learned counsel for the petitioners that Murad, Bahadar, Ramzan and Warrayam petitioners had also sustained 11 injuries which included two injuries one each on the head of Murad and Bahadar but F. I. R. is conspicuous by their omission. He relies in this connection on the medical certificates Annexures `B to E'. He further contends that is view of the allegations made in the F. I. R., petitioners had no motive to attack the complainant party. In fact, motive lay with the complainant party to attack the petitioner, to avenge the insult allegedly meted out to Mst. Kaniz Fatima daughter of Salehoon deceased. He further submits that the prosecution story on the face of it is untrue in so far as Shaman, Ramzan and Harder accused are alleged to have caused injuries with hatchet but all the injuries suffered by Mst. Kaniz Fatima were caused with blunt weapons. Learned counsel for the petitioners points out that it has bee erroneously found by the learned Additional Sessions Judge that all the petitioners are alleged to have caused injuries to Salehoon deceased. In point of fact, according to the F. I R., only three out to accused caused injuries to Salehoon deceased. He submits that that Bahada and Murad petitioners did not cause any injury to Salehoon deceased an only a simple injury to the deceased with Phawara is attributed to Warrayam petitioner. Learned' counsel for the petitioner has further contended that the accused party produced the aforementioned medical certificates before the Investigating Officer and requested him to register a counter‑case against the complainant‑party but he took no action. On these premises, it is argued by the learned counsel that the complainant -party which, had the motive to attack was the aggressor and that in any case, Haider, Bahadar and Murad petitioners who did not cause any injury to Salehoon cannot be held liable for causing his death. As regards Warrayam petitioner, it is submitted that he is al4ed to have caused only, a simple injury to the deceased and, therefore, be is entitled to bail. Reliance in this behalf is pled on Walayat and another v. The State (1984 S C M R 530) in which the accused who was alleged to have given a hatchet blow on the right arm of the deceased which turned out to be simple was allowed bail by the Supreme Court of Pakistan on the analogy of another co‑accused having been granted bail by the High Court on the ground that he had given a simple injury to the deceased with hatchet. Learned counsel further argued that in view of the fact that the accused also suffered 11 injuries unexplained by the prosecution, it is a case of further enquiry and the petitioners are entitled to bail. Reliance is placed one Fazal Muhammad v. Ali Ahmad and 8 others (1976 S C M R 391). Rehmat Ali v. Hussain and 8 others (1978 S C M R 195). Muhammad Shafi v. Hakam Ali and 7 others (1978 S C M R 346) and Muhammad Sharif v. The State (19P Cr. L J 704).

5. Learned counsel appearing for the State has opposed the bail application by reiterating the grounds pressed into service by the learned Sessions Judge. He has, however, not denied that Murad, Bahadar Ramzan and Warrayam accused had sustained 11 injuries two out of which are on the bead of Murad and Bahadar. It is admitted by A. S. I. that the accused party produced their medical certificates before the Investigating Officer and the same are available on the record. A. S. I. however, submits that there is nothing on the record to show that the accused party ever made any request or an application for registering a counter‑case against the complainant party.

6. I do not want to go into the merits of the various contentions raised by the learned counsel for the petitioner lest it prejudice the case of any party. However in view of the fact that both the parties have sustained injuries and the injuries suffered by the accused party are admit tedly not explained in the F. I. R. I am of the opinion that the case is one of further enquiry as envisages: by section 497(2), Cr. P. C. Thus the petitioners Bahadur, Haider, Murad and Warrayam are admitted to bail in the sum of Rs. S0,000 (Rupees fifty thousand only) with one surety e3cb in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Jhang. H. A. K. Bail granted.