1983 P Cr (PLP)

The petitioners and the co‑accused namely, Siddique, Mubarik, Hakim Ali and Faqir are accused of offences punishable under section 302/307/148, P. P. C. read with section 149, P. P. C. The case against them arises out of F. I. R. No. 117, dated 3rd August, 1.981 lodged at Police Station, Burewala Sardar by Manzoor Ahmad, complainant. They are alleged to have formed an unlawful assembly after Zohar prayer in the area of Chak No. 549/E. B. on 3rd August, 1981 while armed variously with guns, rifle, hatchet, pistol and dangs with a common object to murder members of the opposite party of Chiragh. The dispute between the two parties pertains to Charagah land. The petitioners and the co‑accused are alleged to have opened attack with their respective weapons in prosecution of their common object on the members of the opposite party resulting in deaths of Abdul Latif and Dur Muhammad and injuries to others.

2. It is contended on behalf of the petitioners that as a matter of fact it was the complainant party viz. Chiragh's party which armed with lethal weapons attacked the petitioners and other members of their party deaths of Latif and Dur Muhammad deceased were caused by Chiragh and members of his party ; Latif deceased did, not belong to any party ;RA he was standing on the shop of Ali Muhammad where he had gone tc: purchase ice ; Dur Muhammad deceased was a hired man of Chirag party. It is next contended that members of the petitioners' party receive serious injuries at the hands of the complainant party ; in fact the petitioners were in possession of the Charagah land in dispute and the complainant party tried to forcibly dispossess the petitioners and lodged an attack on them, while armed with lethal weapons including fire‑arms. The petitioners filed a W. P. No. 884 of 1981. Lahore, seeking direction to the S. H. O. Burewala to register the case against 9 persons belonging to the complainant party. The High Court vide order dated 10th February, 1982 directed the S. H. O. to register the case. The case has been registered vide F. I. R. No. 23/82, dated 15th February, 1982."

3. Preliminary investigation in the counter case registered vide F. I. R. No. 23/82, dated 15th May, 1982 has been conducted by the afore mentioned A. S. P., Burewala. He has stated before the Court and it also transpires from the record of investigation brought by him that accor ding to his findings the petitioners are innocent, The two deceased namely, Abdul Latif and Dur Muhammad have died as a result of shots fired by Chiragh and his party men.

4. Ali Muhammad at whose shop Latif received the fatal shot and subsequently succumbed to the injury also got injured as a result of a fire shot during the fight between the complainant party and the petitioners party. This Ali Muhammad made a statement before a Magistrate Ist Class, Burewala on 11th August, 1981 under section 164, Cr. P. C. Copy of his statement has been annexed to the under consideration petition as Annexure `F'. In this statement Ali Muhammad has deposed that Latif deceased was hit by a bullet fired by Chiragh, a member of the complainant party. Similarly he further stated that he himself received a bullet injury at the hand of Aziz, a member of the same party.

5. In comments received in connection with the Writ Petition No. 88 of 1981 this Ali Muhammad is admitted to be an unconcerned person being neither a member of the petitioners' party nor that of the complainant party. In Muhammad Sharif v. The State (1981 P Cr. L J 704), it was held that where there is a prima facie probability that the counter version has also some truth in it, it was a fit case of further inquiry within the meaning of subsection (2) of section 497, Cr. P. C. Similar view has been taken in Azmat v. The State (1981 P Cr. L J 1159.), where the Investigating Agency itself treated the occurrence as a case of counter versions and challaned both the parties.

6. Admittedly the opinion of the I.O. including they A. S. P. is not binding on the trial Court for coming to its own conclusion about the be taken innocence or guilt of the accused but such opinion can lawfully into consideration for considering the plea of bail.

7. In the light of the above circumstances the petitioners are admitted to bail in the sum of Rs. 25,000 each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Burewala. M.Y.M. Bail granted.