1984 P Cr (PLP)

Muhammad Iqbal Khan for Petitioner. Abdur Rehman Khan for Respondent. K. G. Sabir for the State. Date of hearing : 14th December, 1983. Criminal Miscellaneous. No. 704/1983 and Criminal Miscellaneous No. 570/1983 arise out of F. I. R. No. 425; dated 24th August, 1983, P. S. Hashtnagri, District Peshawar, vide it was reported that in a quarrel over the unloading of 'rehras' of onions by the accused-party in front of shop of the complainant, at the command of Amanullah accused his son Faqir Hizbullah accused fired a pistol shot, as a result, Shah Jehan was hit who later on died. Amanullah, his brother Yousaf and another sons Zainullah accused further attacked the complainant-party' with stones, bricks and knives, as a result, Muhammad Ali and Liaqat Ali brothers of Fayaz were injured.

2. Learned Additional Sessions Judge refused bail to Faqir Hizbullah accused while granted bail to his co-accused - Amanullah, Yousaf and Zainullah, against the said orders the two Criminal Miscellaneous applications were filed in this Court.

3. Fayaz, Liaqat Ali Muhammad Ali, Mirza and Bakht Gul were examined under sections 161 and 164, Cr. P C. Faqir Hizbullah was attributed the fatal shot at the deceased. Amanullah was charged for slapping Fayaz and raising a `lalkara, commanding his co-accused to finish the complainant-party and also himself causing injury to Liaqat Ali P. W. on right side of forehead With a knife. Yousuf and Zainullah accused were charged for throwing stones and bricks at the complainant party, as a result, Muhammad Ali P. W. sustained an injury:

4. Medical evidence report two simple incised wounds on right side temporal region and right side cheek, respectively on the person of Liaqat Ali P, W. caused by sharp weapon. There was reported a simple contused wound on left side cheek of Muhammad Ali P. W. caused by blunt weapon. Shah Jehan deceased was found with a fire-arm entrance wound on the bridge of his nose. A bullet was later on recovered from behind the left ear on post-mortem examination.

5. Learned counsel for the accused argued that in a sudden fight, not pre-planned and absence of motive, the case shall be apparently one of culpable homicide not amounting to murder and Faqir Hizbullah accused charged therefore shall be liable to punishment under section 304, P. P. C He pleaded for his bail and also supported the grant of bail to the co- accused respondents by the learned Additional Sessions Judge who had only caused simple injuries to the P. Ws. On the other hand, it was argued that the accused had perpetrated the crime in furtherance of their common intention and all of them were prima facie involved for offences under section 3021307/34, P. P. C. punishable with death and imprisonment for life.

6. Without dilating upon the merits of the case, Faqir Hizbullah accused charged for murder is riot entitled to the concession of bail as eve offence under section 304, ' P. 1'. C., is punishable with imprisonment for life or imprisonment up to ten years, His case falls within the prohibitory clause contained in subsection (1) of section 497, Cr. P. C.

7. Yousuf and Zainullah accused are (charged only for one simple contused wound caused to Muhammad Ali P. W. by throwing stone and bricks at him. No other overt act has been attributed to them. They are entitled to the concession of bail as rightly granted by the learned Additional Sessions Judge.

8. Amanullah accused has been charged one, for slapping Fayaz P. W., second, raising a lalkara and third, himself inflicting two inside wounds with knife at the face to Liaqat All P., W. Lalkara in the shape of command by an accused in a position of influence to his co-accused who perpetrates the crime in compliance thereof shall prima facie incur a constructive liability to him for the offence committed by his co-accused.

9. As a result, Criminal Miscellaneous No". 704/1983, is dismissed. Criminal Miscellaneous No. 570/1983, is also dismissed vis-a-vis Yousaf and Zainullah accused-respondents while it is accepted against Amanullah accused-respondent whose bail is cancelled, taken` into custody and sent to judicial lock-up. M. Z. M. Order accordingly.