1988 P Cr (PLP)

Altaf Muhammad Khan for the State. Complainant in person. Abdul Khan petitioner alongwith Masood stand arrested for having committed the murder of Sajid Mahmud and murderous assault on Muhammad Jamshed complainant on 10-7-1986 at 6-30 p.m. in the vicinity of village Jagiot Khalsa Police Station Kahuta, district Rawalpindi. The petitioner's bail plea was declined by the lower Court, hence this application.

2. It may be noted that petitioner's earlier bail application (Criminal Miscellaneous No. 122-B of 1987) was disposed of on 14-4-1987 by me while functioning at Rawalpindi Bench, directing that the trial Court shall finalize the trial within two months from the date of commencement of trial. Charge in the case was framed on 8-4-1987 and so far evidence of two doctors have been recorded. The case is stated to be now pending in the Court of Mr. Farrakh Latif, Additional Sessions Judge, Rawalpindi, who has proceeded on Shariat Court for 8 weeks, hence this application.

3. One Ghazanfar, brother of` Muhammad Jamshed complainant abducted Mst. Nusrat Bibi, a cousin of Masood co-accused of the petitioner, a few months before the occurrence. On the fateful day while Sajid Muhammad (deceased) in the company of Ghazanfar, Muhammad Jamshed and Daood was returning home on the tractor of aforesaid Daood, they were way laid by Masood armed with a revolver and Abdul Khan petitioner armed with .12 bore gun to avenge the insult. Sajid Mahmood (deceased) was fired at by Masood, co-accused of the petitioner, hitting him in the chest as a result of which he died at the spot. Abdul Khan petitioner allegedly fired at Muhammad Jamshed complainant who escaped unhurt. It was also alleged that in order to save themselves, the complainant party pelleted stones on the petitioner.

4. Masood as well as `the petitioner were arrested in the case. An empty was recovered from the spot which has matched with the gun, allegedly recovered from the petitioner. The petitioner was got medically examined by the police on the same day as he was seriously injured. The doctor found as many as nine injuries caused with blunt weapon on his person including 4 grievous hurt involving fracture of skull, fracture of bones of both the shoulders and fracture of two ribs. The deceased's post-mortem examination revealed that he suffered one gun shot injury in the chest, which proved fatel.

5. It may be stated that Abdul Khan petitioner has got a private complaint filed through his relative Abdul Wahid Sabir on 8-11-1986 against Muzafar, Muhammad Akhtar and Sajid Mahmud deceased alleging therein that the petitioner while returning home after attending a marriage party was attacked by the aforementioned accused and the deceased, for they suspected him to have got the case regarding the abduction of Mst. Nusrat, registered against them. They have been summoned to face trial under sections 307/325, P.P.C. vide order, dated 19-9-1987 by the trial Court.

6. It is contended on behalf of the petitioner that the petitioner did not injure anybody rather he has suffered 9 injuries including 4 grievous hurt which indicates that he was not armed with gun as alleged by the prosecution; that in fact he was victim of aggression, that the petitioner is in jail since 10-7-1986; and that despite a direction by this Court made on 14-4-1987 to finalize the trial within two months it is still at initial stages; and that cross-version filed on behalf of the petitioner is prima facie found as true as the trial Court has summoned the opposite party to face the trial, therefore, it needs further inquiry to find as to which of the two versions is true, hence the petitioner deserves to be released on bail. Replying, learned State counsel as well as the complainant who on request has personally argued his case submitted that since the trial has commenced, therefore, the petitioner should not be released on bail and that the injuries had been caused by complainant party to the petitioner in exercise of right of private defence of person. Lastly it is urged that as the petitioner stands charged for committing offence of murder punishable with death, therefore, petitioner's case is covered by prohibitory clause of section 497, Cr.P.C. and is thus not entitled to the grant of bail.

7. Having considered the facts and circumstances of the case I find that trial in the case has not been finalized within two months in compliance with the direction of this Court; that shot fired by the petitioners did not hit anybody; and that in the cross-version filed by the petitioner, the complainant party has been summoned as accused, therefore, the question of innocence or guilt of the petitioner would need further inquiry. Consequently I allow this petition and direct that the petitioner be released subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of Sessions Judge, Rawalpindi. The record of the case shall be sent down at once to the Court concerned for resuming the trial. S.G.D./A-196/L Bail allowed.