2004 PLP 44 (YLR)

Date of hearing: 12th June, 2003. Muhammad Rashid son of Niamat Ali, caste Malik, resident of Sahari Hithar, petitioner, has applied for his post‑arrest bail in the case bearing F.I.R. No36 of 2003 dated 28‑1‑2003, which stands registered under sections 302, 342, 148, 149, 337‑A(i)/337‑L(2), P.P.C‑ with Police Station Saddar, Kasur.

2. The allegation against the petitioner is that on 28‑1‑2003 at about 4‑30 p.m. in the area of Mauzas Suhari Hatharr he while armed with a Sota alongwith his co‑accused armed with of fire‑arm on raising Lalkara by co‑accused Liaquat Ali, assaulted on Muhammad Sharif who was hit by a fire shot of pistol made by Muhammad Akbar co‑accused and after falling on the ground yielded to the injuries. While he (the present petitioner) caused injuries to Muhammad Ashfaq with Sota blows and, thereafter while making aerial firing the petitioner and his companions fled away from the spot. The motive behind the occurrence was that the deceased and Ashfaq Machhi the injured witness had given slaps to Liaquat Ali when seven or eight days earlier Liaquat Ali had cut indecent joke against the wife of brother of Muhammad Ashfaq. So at the instance of Muhammad Latif the abovesaid case was registered.

3. While refusing bail to the petitioner the learned Additional Sessions Judge, Kasur recorded his observations in para. No.6 which word for word are as under:‑‑ "

6. Petitioner/accused is nominated in the F.I.R. Specific role is assigned to him that he caused injuries to Ashfaque P.W. with Sota. During investigation Sota has been recovered from him. Which connects him with the commission of crime. Apparently it appears that he alongwith his co‑accused came at the spot of occurrence during which Sharif lost his life whereas Ashfaque P. W. sustained injury at the hands of petitioner/accused. Hence petitioner looks vagariously liable for the offence which falls within prohibitory clause of section 497, Cr.P.C."

4. I have heard the learned counsel for the parties and have' gone through the relevant record placed before me.

5. Learned counsel for the petitioner argued the allegation against the petitioner as per contents of the F.I.R. is only to this extent that he caused injuries to the prosecution witness which are simple in nature and that no injury to the deceased was caused by the petitioner, whereas the petitioner has been falsely implicated in the case by assigning him a fake role. He added that the cross‑version has also been brought by the accused party on the record, therefore, both the versions have to be thrashed out at the stage of trial. He referred to the cases reported in "Atta Ullah and 3 others v. The State 1999 SCMR 1320 (Supreme Court of Pakistan); Mumtaz Hussain. and 5 others v. The State 1996 SCMR 1125 (Supreme Court of Pakistan); Abdul Aziz v. The State 1996 SCMR 1693 (Supreme Court of Pakistan) and Muhammad Sadiq v. Muhammad Nisar and 7 others 2003 PCr.LJ 20 (Supreme Court (AJ&K) in support of his arguments, which have been opposed by the learned counsel for the State.

6. It appears on examination of the record that no injury to the deceased is attributed to the petitioner and this contention that the injuries sustained by the witness are simple in nature could not be rebutted by the learned State Counsel.

7. The output of the investigation verified by D.S.P. (Circle in a Zimni dated 30‑3‑2003 is that the petitioner had inflicted Sota blows to Ashfaq witness but he was not present in the second part of the same incident when the firing was made by the opponents at the spot and in connection with the main occurrence Muhammad Ashfaq, etc. were found guilty in the cross version under section 324/34, P.P.C. advanced by the accused party and that A there was a direction to arrest the accused persons to recover the crime weapons. This opinion of the investigating police seems to be based upon some sound material, therefore, it may be taken into consideration. Even otherwise there is no denial from this fact that either earlier or later the cross‑version has been brought on the record by the accused party which is also to be thrashed out by placing it side by side with the prosecution version. Therefore, to the extent of the petitioner it is a case of further inquiry and this aspect of the case was not examined by the learned Additional Sessions Judge.

8. In view of the above circumstances Muhammad Rasheed petitioner is admitted to bail subject to his furnishing surety bonds in the sum of,Rs.2,00,000 (rupees two lacs) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Kasur. H.B.T./M‑2332/L Bail granted.