1998 P Cr (PLP)

Syed Nayyer Hussain for the State. A case under sections 324/34, 337-A (ii)(iii), 337-F-II/V, P.P.C. was registered against the petitioners vide F.I.R. No. 116, dated 13-8-1997 at Police Station Domaili, District Jhelum for an occurrence, which took place on 6-8-1997 in which the complainant Haji Muhammad Buksh was attacked by the petitioners on the ground that he had purchased some land from Muhammad Zaman resident of Dhok Suba of which they felt aggrieved. Out of the petitioners Abdul Majeed was armed with a Lathi and Abdullah and Abdul Aziz both with hatchets. The attack was opened by Abdul Aziz by giving a hatchet blow on the left elbow of the complainant. The other blow with the hatchet was given by Abdullah petitioner, which struck the forehead of the complainant. The 3rd blow was given by Abdul Majeed with the Lathi on the lower ribs of the complainant. Thereafter, another blow was given by Abdul Aziz injuring the right side of the right eye of the victim. The petitioner Abdullah gave second blow on the left wrist of the complainant whereupon he fell down. The petitioner Abdul Majeed thereupon repeated several blows of Lathi injuring the different parts of the body of the complainant.

2. The petitioners applied for .bail, which was dismissed by the. Court below.

3. It is contended by the learned counsel for the petitioners that Abdul Majeed is an old man of about 60 years and the injuries attributed to hire are simple and blunt besides that he is sick and infirm as would be clear from the report of the Medical Board placed on record. Likewise "other petitioners namely Abdullah and Abdul Aziz are also attributed injuries allegedly with hatchets but no specific injury is pointed out, qua them. Since they are assigned general role in causing injuries to the complainant/victim, therefore, they are also allegedly entitled to bail; that the F.I.R. was the result of due deliberations being delayed by about 7 days; that petitioners have no previous history and are in judicial lock-up and their persons are no more required.

4. The bail petition is opposed by the learned counsel for the State assisted by the learned counsel for the complainant on the ground that there was a specific motive with the petitioners to cause injuries to the complainant; that while armed with deadly weapons, they had beaten the victim to the blue by giving him 13 injuries as per medico-legal report placed on record. Out of them injury on the forehead which is shown in the medical report as injury No. 1 has been declared as fracture and the intention of its maker could be easily inferred that he wanted to finish the man; that the other petitioners also showed common intention with the aforesaid author of the injury namely Abdullah and as such were vicariously liable; that the petitioner Abdul Majeed is also not entitled to bail on medical grounds. As per medical report he is not suffering from any disease which may show that he cannot be successfully treated in the Jail Hospital. It was, therefore, prayed that petitioners are not entitled to bail.

5. I have considered the foregoing submissions and find that grievous injury on the vital part of the body of the victim i.e. forehead is attributed to Abdullah i.e. petitioner No.2. He is, therefore, not entitled to bail at this stage whereas other two petitioners are ascribed injuries which are simple and on the non-vital parts of the body of the victim. Question of vicarious liability would remain open and could only be gone into at the time of trial. Their case is therefore, distinguishable from the aforesaid Abdullah i.e. petitioner No.2 Likewise the medico-legal report in respect of Abdul Majeed shows that he examined by three Medical Officers. Out of them one was Surgeon, the other was Physician and the 3rd was Medical Superintendent. They have come to the following conclusion:-- "Provisional diagnosis of this case is hypertension and proximal myopathy and pneumonic consolidation right lung." It shows that the aforesaid petitioner is a known case of hypertension and has weak muscles due to proximal myopathy and pneumonic consolidation of right lung. During the examination, it was observed by the Board that he was unable to sit or stand without support. In such a situation and keeping in view his advance age it can be safely said that he is sick and infirm person and as such hip t case would fall within the proviso to section 497, Cr.P.C. He is entitled to bail even on that ground, but since it has been said above that he and his co-accused Abdul Aziz are attributed simple injuries on non-vital parts of the body of the victim, therefore, on merits as well both of them deserve to be released on bail. I accordingly accept the bail petition to the extent of Abdul Majeed and Abdul Aziz petitioners Nos. l and 3 and admit them to bail in the sum of Rs.30,000 each with one surety each in the like amount to the satisfaction of learned trial Court.

6. The bail petition to the extent of Abdullah i.e. petitioner No.2 is, however, is missed for the reasons stated above. H.B.T./A-246/L Order accordingly.