1971 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 497(5)‑Bail, cancellation of‑Murder case‑Accused although armed with chhuri, nevertheless making no use of it and alleged only to have raised lalkara‑Fact that accused did not use chhuri held, would entitle him to grant of bail‑Bail not cancelled. Khawaja Sultan Ahmad for Petitioner. Illahi Bakhsh Vijadani for the State. This order shall dispose of Criminal Miscellaneous Petition No. 3751 of 1970, preferred by Muhammad Yaqoob, for grant of bail and Criminal Miscellaneous Petition No. 3848 of 1970, preferred by Zahoor Elahi complainant for the cancellation of the bail granted to Ghulam Rasool accused by the learned Additional Sessions Judge, Lahore. 2. Brief facts of the case are, that ion 8th April 1970, at about 10‑00 p.m., an occurrence took place on Sultanpura Road near a mosque known as Bari Masjid. The prosecution case is, that Muhammad Tufail deceased and his brother Muhammad Shafiq were on way to their house, when Muhammad Younis, Muhammad Yousaf armed with dagger and chhuri respectively; Muhammad Amin, Ghulam Rasool, Mushtaq armed with churris and Muhammad Yaqoob empty‑handed met them. Muhammad Yousaf opened the attack by giving a dagger blow in the abdomen of Muhammad Tufail deceased, who fell down. Thereafter, Muhammad Younis gave a chhuri blow to Zahoor Elahi and Mushtaq hit him from behind with chhuri. Muhammad Suafiq attempted to rescue Zahoor Elahi, when Muhammad Amin hit him with chhuri. He, however, managed to snatch the chhuri from him and in self‑defence, inflicted injuries on Muhammad Yaqoob and Muhammad Yousaf. Ghulam Rasool and Muhammad Yaqoob kept on raising lalkaras. 3. Taking up the case of Muhammad Yaqoob, I find that, he was empty‑handed and only a lalkara has been ascribed to him during the course of the fight. It is contended by learned counsel for the petitioner, that he received three injuries, out of which one was grievous and caused by sharp‑edged weapon. There is no denial to this assertion. The learned Additional Sessions Judge refused to allow bail to Muhammad Yaqoob because in his opinion, the petitioner had taken part in the fight as "ha had received three injuries, one of which was found to be grievous." He thought that it was premature to speculate as to which party was aggressor in this case. He thus found that no case was made out to enlarge Muhammad Yaqub on bail. This in my view is hardly a reason for disallowing bail, when it is evident from the perusal of the first information, that no part has been ascribed to the petitioner except raising usual lalkara. Thus his petition is allowed and it is directed, that he shall be released on bail, provided he executes bail bond in the sum of Rs. 15,000 (rupees fifteen thousand) with one surety, in the like amount to the satisfaction of the Inquiry Magistrate. 4. Ghulam Rasool was allowed bail by the same order of the learned Additional Sessions Judge, because the lalkara in his case was not considered as a command to open the attack on the opponents of the accused. However, whatever be the reason for which he was allowed bail, would reject the application for its cancellation, for the simple reason, that he was stated to have been armed with a knife (chhuri), but in spite of it, did not use it. Only lalkara has been ascribed to him. The very fact that' he did not use the chhuri would entitle him to the grant of bail I, therefore, find no reason to cancel the same and as a consequence, the application for cancellation of bail stands dismissed. Order accordingly.