1976 P Cr (PLP)

The previous petition for bail of the present petitioners namely Cr. Mist 222/B of 1975 (Lahore Cr. Mist. 746/8 of 1914/Babawalpur) was dismissed by me on merits on the 27th of January, 1975. The present bail petition is filed on new grounds. A case was registered against the petitioners alongwith others vide an F. I. R. No. 67 at the instance of Shabbir complainant on the 1st of August, 1974 at Police Station Yazman under sections 302/30, 366, 148/149, P. P. C. The allegation in the F. I. R. was that the petitioners in the course of abduction of Mst. Maqsoodan Bibi attacked the members of the com plainant‑party. The petitioners were armed with guns who opened fire at the complainant side. Mushtaq Abroad and Mumtaz Abmad petitioners ate stated to have fired at Muhammad Salim who died on the spot. Muhammad Hanif petitioner fired at Muhammad Hashim P. W. who sustained an injury on his right wrist. It is stated that the petitioners eventually managed to abduct Mst. Maqsoodan Bibi and ran away firing. It may also be noted that a cross F.

1. R. No. 66 was lodged by Mumtaz Ahmad petitioner on the same date at Police Station Yazman three hours earlier against the complainant party. 1n that F.I.R. it was alleged that Mushtaq Ahmed petitioner had gone to his Dera. His brother Mumtaz Ahmad petitioner learnt that the complainant‑party had gone to the Dera of the accused party armed with guns. On hearing this Mumtaz Ahmad petitioner alongwith his servant Bashir armed with a gun rushed to the Dora. However he encountered the complainant‑party on the way. There was exchange of fire and as a result his servant Bashir was injured. Later on, he went to the Dress and found Mushtaq Ahmed petitioner lying there also injured. This is the counter version. The new grounds which are being urged before me are that the nature of the injuries found on the persons of Mushtaq Ahmed petitioner and his servant Bashir was that these had been declared as dangerous to life or grievous. Mushtaq Ahmed sustained five firearm injuries. According to the medical evidence the injuries were on the left thigh, right fore‑arm, neck (under the chin), and on the left foot. Out of these injuries it is stated by the Medical Officer that injury on the neck could have proved dangerous to life and injury on the left foot was of grievous nature. The rest of the injuries were found to be simple. So far as the servant Bashir is concerned according to the medical evidence he sustained two firearm injuries on the right elbow and right leg. Injury on the right elbow was found grievous whereas injury on the left log was found simple. It is being argued that the nature of the injuries on the person of Mushtaq Ahmad petitioner and his servant Bashir would indicate that they had sustained these injuries in the course of the occurrence, but in the version given in F. I R. No. 67 the complainant party suppressed the part played by it and did not mention anything about the injuries sustained by Mushtaq Ahmad petitioner or his servant Bashir. It may be pointed out at this stage that 5 different Investigating Officers had been entrusted with the investigation of this case, There are allegations on both the sides of the exertion of influence over the police. The last investigation had been conducted by Mr. Muhammad Hanif, D. S. P., Crimes Branch who is present in Court alongwith the record, According to him his investigation has revealed that F. I. R. No. 67 got registered against the petitioner was correct whereas the cross F. I. R. Not 66 got registered three hours earlier by Mumtaz Ahmad petitioner against the complainant‑party was false. It is urged before me by the learned Counsel for the petitioners that due to influence of the complainant party, the investigation has been transferred from one Investigating Officer to another and it was due to their influence that F. I. R. 66 of the petitioners was cancelled by the Police as false. Nevertheless it is submitted that Mumtaz Ahmad petitioner then bled a private complaint under sections 307, 382, 148, 149, P. Y. C, against the members of the complainant party and on the both of February, 1975, A. D. C. (G), Magistrate Section, 30, Bahawalpur had summoned the members of the complainant party in that case. It is argued by learned counsel that firstly the complainant party has suppressed the part played by them in their F. I. R. No. 67 by not providing any explanation of injuries on the persons of Mushtaq Ahmad petitioner and by not mentioning Bashir servant at all or the injuries sustained by him. It is submitted that at present, there are cross‑cases and two counter versions and it is yet to be determined as to which version is correct and which incorrect. According to learned counsel the occurrence took place near the Dera of the petitioners, that the injuries received by two persons on the accused side were not explained by the complainant party, that the alleged abductee Mst. Maqsoodan Bibi did not support the prosecution version and denied that she had been abducted by any one, that it could not be said at this stage as to who was the aggressor, that at the most, it may eventually be a case of free tight and if, it was so, than it would be decided on the basis of individual liability, and that Bashir injured was owning the firing from side of petitioners' party and finally that the complainant party being on bail, the petitioners were also entitled to bail. Learned counsel has placed reliance on Allah Ditra and 10 others v. State (1970 P Cr. L J 666), where it was held that if there were cases in a dispute concerning possession of land which lead to the commission of murder, record indicating two different versions in the matter of physical possession of parties, the accused also suffering injuries, in such circumstances the case of the accused was covered by section 497 subsection (2), Cr. P. C. Reliance was also placed on Mat. Shafiqan v. Halim Ali and another (1972 S C M R 68). In that case there were counter versions and it was yet to be seen as to who was aggressor and whether the respondent had committed an offence punishable with death or transportation for life. The High Court had allowed bail to the accused person and the Supreme Court had declined to interfere. Reliance was likewise placed on Wali Muhammad v. State (1973 P Cr. L J 74). In that case there were cross‑cases and a fight had taken place over the turn of water. The fate of the case depended on the question of fact whether new Warabandi had or had not come into force at the time of occurrence. Such finding of fact was yet to be determined and therefore, the accused was enlarged on bail.

2. Muhammad Hanif, D. S. P., Crimes Branch who is present in Court alongwith the record of this case, has gone through certain portions of the record before me. It is clear that the matter has been investigated for five times again and again until the final investigation report has been put which is to the effect that F. I. R. No 67 got registered against the petitioners was the correct one. The record also reveals that the police recorded statements of Munir Ahmed and Kala Khan under section 161, Cr. P. C. on the 28th of October, 1974 (after about three months of the occurrence). Both these witnesses had stated that after the petitioners had attacked the complainant‑party and murdered Muhammad Salim as well as injured other persons by gun fire, they in order to create a defence, decided that Mumtaz Ahmad petitioner would fire shots at Mushtaq Ahmad petitioner and Bashir, the servant. Consequently Mushtaq Ahmad petitioner stood near a tree And a shot was fired at him by Mumtaz Ahmad petitioner in the leg. It was as a result of that shot that he sustained injuries on the leg, arm neck and foot. 1n the same way Bashir was also Bred at where he was made to extend out his right leg and as a result this person sustained to firearm injuries. According to these witnesses both Mushtaq Ahmad petitioner and Bashir, the servant, had sustained injuries at the hands of Mushtaq Ahmad petitioner in order to construct a defence. The D. S. P. Crimes Branch had stated before me that this is what his investigation has revealed. The challan has been put up by him and the matter is at present pending before the Committ ing Magistrate who has also summoned the member of the complainant‑party in the complaint case filed by the petitioners. I have carefully examined the record. I do not wish to comment on the nature of evidence collected in this case by the police but I am of the view that it is not a fit case for the grant of bail at this stage unless some evidence is recorded by the learned Committing Magistrate in support of the counter version. Learned counsel has requested that I should direct the Committing Magistrate to record the statements f Munir Ahmad and Kala Khan witnesses against the petitioners as expeditiously as possible so that they could be cross‑examined. This prayer is granted. The Committing Magistrate is directed to record their statements first. This petition is dismissed. Petition dismisses: