1992 P Cr (PLP)

Syed Sharif Hussain Bokhari for the Complainant. Date of hearing: 13th January, 1991. The petitioners who alongwith others, are involved in a case under section 302/307/149/148, P.P.C. arising out of F.I.R. No.166, dated 25‑4‑1990, registered at Police Station Chak Jhumra, District Faisalabad, seek to be admitted to bail.

2. Briefly, the prosecution case is that on 25‑4‑1990 at about 5‑30 p.m. Abdul Khaliq deceased was on his way home after offering Asar prayer. He was followed by his father Ata Muhammad complainant. When they reached Tankiwala crossing, Muhammad Anwar petitioner armed with gun, Sarwar with revolver, Shahzad petitioner armed with Datar, Muhammad Musa armed with revolver and Abdul Hamid petitioner armed with a gun, were present in front of their house. They raised Lalkara saying to teach lesson to Abdul Khaliq for abusing Shahzad. Sarwar and Musa accused fired at Abdul Khaliq which hit him on his head, neck and elbow of right arm, who succumbed to the injuries at the spot. Thereafter Muhammad Anwar, Abdul Hamid, Sarwar and Musa resorted to indiscriminate firing. It is further alleged that after the said occurrence, Muhammad Anwar etc. went on the roof of their Haveli and started firing and a shot fired by Abdul Hamid hit Mst. Farhat daughter of Muhammad Anwar.

3. Learned counsel for the petitioners has raised the following contentions in support of this petition:‑‑ (a) that the D.S.P./S.D.P.O. vide his Zimni No.38, dated 20‑8‑1990, opined that according to his investigation, Abdul Khaliq deceased went to the house of the accused party for the purpose of fight and there both the parties fired at each other; (b) that petitioners Nos.l and 2 were not found involved in the crime, although they were present at the scene of occurrence and no overt act has been attributed to Shahzad petitioner No.2, as he has not caused any injury either to the deceased or the injured P.W.; (c) that Muhammad Anwar petitioner No.l was found injured at the time of the incident, hence he did not take part in the fight; and (d) with respect to Abdul Hamid petitioner No.3, learned counsel submitted that as per the finding of the D.S.P., referred to above, the parties fought with each other and there was exchange of firing, hence the case against each accused is to be decided on the principle of free fight and every body would be responsible for his own individual act. As Abdul Hamid caused simple injuries to Mst. Farhat with fire‑arm; hence his case falls within the ambit of section 324, P.P.C. and he is entitled to bail.

4. Learned counsel for the State has vehemently opposed this bail application.

5. Learned counsel appearing for the complainant submitted that all the accused persons were members of the unlawful assembly, being close relatives; they had the motive to commit the murder of Abdul Khaliq, hence on the principle of vicarious liability, they are not entitled to bail. He further submitted that the finding of the D.S.P. is not based upon proper evidence, because the F.I.R. was lodged with promptitude and all the eye‑witnesses have supported the prosecution version. He has referred to the evidence of Muhammad Bashir, shopkeeper and Muhammad Rafiq, resident of the locality, who according to the learned counsel are the most independent witnesses of the occurrence.

6. After hearing the learned counsel for the parties and perusing the record, I find substantial force in the submissions of the learned counsel for the petitioners so far as the part attributed to Muhammad Anwar and Shahzad petitioners Nos.l and 2, respectively, is concerned, because according to the finding of the D.S.P. Muhammad Anwar petitioner recieved serious injuries which were corroborated by the medico‑legal report brought on the record; hence his presence and participation in the crime is doubtful. It would be determined after recording of some evidence, whether he actually participated in the crime or not. As there is no independent corroboration with respect to the part played by Shahzad petitioner No.2, hence in the background of enmity, the possibility cannot be ruled out that he might have been involved due to this enmity and the case against him also falls within the ambit of further inquiry. These two petitioners are, therefore, admitted to bail in the sum of Rs.50,000 (fifty thousand only) with one surety each in the like amount to the satisfaction ,4 of the A.C., Faisalabad.

7. The case qua Abdul Hamid petitioner is distinguishable from the case of the aforesaid two petitioners, because he has caused injuries to Mst. Farhat with fire‑arm, which prima facie corroborates the version given in the F.I.R.; hence there are reasonable grounds to believe that he is involved in a case which falls within the prohibitory clause and he is not entitled to bail. The bail petition qua Abdul Hamid is dismissed. H.B.T./M‑3050/L Order accordingly.