1999 PLP 1055 (MLD)

Rab Nawaz Khan Niazi for Petitioners. Noor Muhammad Qasir Kaliar for the State. A case under section 337-A(vi)(ii)/34, P.P.C. was initially registered against the petitioners and two others vide F.I.R. No .28, dated 13-3-1998 at Police Station Pai Khel, District Mianwali at the complaint of Ghulam Abbas as his brother Muhammad Nawaz was injured during the occurrence. The offence under section 324/452, P.P.C. were also added on 13-3-1998.

2. The brief facts are that Ghulam Abbas, a brother of the victim Muhammad Nawaz reported to the police that he alongwith his family members were asleep in a room of the house. The victim was sleeping in the court-yard. At about 1-00 a.m. they heard the noise and got awoke. They saw that the petitioners alongwith two others while armed with hatchets were giving hatchet blows to the aforesaid Muhammad Nawaz. They were identified in the moonlit night. The bone of contention was dispute over some land which the accused party wanted to get vacated but the complainant side refused as they had built their houses thereon.

3. Learned counsel for the petitioners has submitted that the petitioners were found innocent by the police as according to investigation they had reached the spot empty handed after their father Noor Khan armed with hatchet had attacked the victim on the ground that the latter had come out of his house after their sister was found missing from her cot; it was suspected by the accused party that the aforesaid lady had some illicit liaison with the injured P.W. and as such their father had gone there in her pursuit. However, the complainant side allegedly involved the petitioners falsely in this case in order to throw the net a little wider; this version of the petitioners allegedly found favour with the police, whereupon the S.H.O. and the D.S.P. held them innocent in view of defence taken by them; that the motive was not proved as the alleged land in f, dispute was with the complainant side who were refusing to vacate the same; that it was a case of further enquiry after the petitioners were innocent on the basis of defence story, whereby Mst. Kausar Bibi sister of the petitioners having developed illicit relations, was found with the injured P. W. at his house and was surprised by their father namely Noor Khan, the principal accused. It was, therefore, submitted that the petitioners had a case of further enquiry and they were entitled to bail in view of principle laid down in Sher Muhammad and 2 others v. The State and 4 others reported as 1994 SCMR 549 (Supreme Court of Pakistan). Secondly it is not the maximum punishment to be looked into at the time of bail but the fact is to be considered as to how much punishment is likely to be awarded. In this regard, reliance was placed on Mir Akhtar Khan Khattak v. The State reported as PLD 1982 Peshawar

128. Lastly, reliance was placed on Islamil and others v. The State reported as 1992 PCr.LJ 2182 (Karachi) and Mst. Baboo Jana v. The State reported as 1990 PCr.LJ 326 (Karachi) It was contended that Superior Courts expounded the basic rule that bail not jail should be the general consideration while deciding the question of bail.

4. The bail petition is opposed by the prosecutor on the ground that the petitioners are named in the F.I.R. and they assaulted the victim alongwith their father while armed with hatchets; all the assailants had chosen the vital part of body of the victim such as head to inflict the injuries; that there were six injuries of sharp-edged weapon as per medico-legal report which manifested the intention of the petitioners to finish the victim. It was, therefore, submitted that in fact the petitioners have no case for bail even if they were found innocent by the police on the basis of defence plea taken by the petitioners before it. In this regard, it was contended that ipse-dixit of police is not binding on the Courts while deciding the bail matters. Reliance was placed on Muhammad Ashraf v. The State reported as 1979 PCr.LJ 68 (Lahore), Mir Allahi Bux v. The State reported as 1979 PCr.LJ 887 (Karachi), Imtaiz Ahmad and others v. The State reported as 1986 SCMR 192 and Muhammad Manasha v. The State reported as PLD 199r6 Supreme Court 229.

5. I have considered the above submissions and find that according to promptly lodged F.I.R, both the petitioners were shown to be armed with hatchets sand had assaulted the victim alongwith their father Noor Muhammad. There were six injuries on the person of the victim namely Muhammad Nawaz. The vital, part like head was chosen to cause injuries to the victim which, prima facie, showed the clear cut intention of the petitioners that they wanted to finish him. They mere fact that the Police had given its opinion that the petitioners were innocent would not be much relevant at this stage because that is based on the defence aversion, inter alia, pleading that the occurrence took place under grave and sudden provocation because sister of the petitioners was found with the deceased. in his house at the mid-night. This defence plea has to be substantiated at trial rather to be decided by the Police in its investigation. On the contrary, the victim after gaining consciousness had clearly implicated both the petitioners for having assaulted him with hatchets. He is supported by the other eye witnesses that the petitioners while armed with hatchets had committed the occurrence. Even their presence is admitted by the police but they had been shown empty handed. It is improbable that they will accompany their father Noor Khan i.e. the principal accused empty handed when they had a suspicion that their sister had gone to the house of her paramour. Rather they would be armed while accompanying their father to meet any anticipated resistance on such occasion. I would not like to enter into the deeper appreciation in respect of the foregoing facts but would hold for the limited purpose of this petition that the petitioners have no case to be released on bail at this stage. However, if any extenuating circumstance arises after the submission of challan to the Court, the petitioners may re-agitate the matter before the trial Court irrespective of the dismisses o f this petition. The observations made above should only be taken for the limited purpose of disposal of this petition without influencing the course of trial or finding to be ultimately given on the merits of the case by the trial Court. The petition is accordingly dismissed with the foregoing observations. N.H.Q. /H.56/L Bail refused.