1995 P Cr (PLP)

Hasnat Ahmed Khan for Petitioner. Mian Mudassar Bodla for the State. This is an application for grant of bail on behalf of the petitioner in a case registered at Police Station, Hujra Shah Muqeem for an offence under section 302/34 P.P.C., vide F.I.R. No.291/94, dated 19‑7‑1994.

2. Niaz Ahmed, complainant is the brother of Muhammad Nawaz deceased. The allegations made in the F.I.R. are that on 19‑7‑1994, at about 9‑00 p.m., the deceased and the petitioner were taking tea in a hotel. In the meantime, one Takoo also came there. Riaz Ahmed armed with .12 bore gun and Mukhtar Ahmed armed with 222 rifle, who are brothers of Takoo came there following him. Mukhtar Ahmed accused slapped Takoo and exhorted Riaz Ahmed petitioner to kill, Muhammad Nawaz, because he had spoiled character of their brother Takoo. Thereafter, Riaz Ahmed is alleged to have fired at Muhammad Nawaz with his .12 bore gun, hitting him on his thighs. This injury proved to be fatal.

3. Learned counsel for the petitioner submits that in the investigation, police has come to the conclusion that it was on account of sheer negligence that Muhammad Nawaz was injured on account of the accidental firing which resulted due to the scuffle between the petitioner and his brother Takoo. In this behalf, he has referred to Zimni No.14, dated 20‑8‑1994, prepared by Mr. Iftikhar Ahmed Pannoo, D.S.P. Learned counsel, therefore, contends that there was no intention on the part of the petitioner to kill the deceased and it was by sheer accident that he was hit by the gun fire. Basing on this argument, he contends that the offence is not covered by section 302, P.P.C. but it constitutes Qatl‑i‑Khata, as defined by section 318, P.P.C., which is not punishable with imprisonment but the offender is liable to pay Diyat only. Learned counsel for the State has vehemently opposed the bail application.

4. I have seer the record brought by the Police Officer. The petitioner has been challaned for his trial under section 302, P.P.C. Admittedly, Muhammad Nawaz died on account of fire‑arm injury caused by the petitioner with his gun. The theory of accidental firing "does not fit in the circumstances of the present case. If the petitioner and his brother Mukhtar Ahmed had come merely to admonish their brother Takoo to remain away from the company of the deceased, then there was no earthly reason as to why they should have come on the hotel duly armed with guns. The very fact that they had come with fire‑arms suggests that they were up to something more than mere counselling their brother. Mukhtar Ahmed co‑accused has already been granted bail by this Court on the ground that the injury was not attributed to him. Muhammad Nawaz admittedly lost his life in consequence of the gunshot fired by the petitioner. I do not feel that case for bail is made out. Learned counsel for the petitioner has placed reliance on Muhammad Rafiq v. The State 1989 MLD 51 and Ghulam Muhi‑ud‑Din v. The State 1986 PCr.LJ 1024, to contend that where intention is wanting, accused person is entitled to bail on account of the accidental death. The cases cited are clearly distinguishable. These are the cases, which pertain to accidental deaths. However, in the present case, prima facie, it cannot be said that Muhammad Nawaz lost his life on account of accidental firing. Case falls within the mischief of subsection (1) of section, 497, Cr.P.C

5. For what has been stated above, petitioner is not entitled to the grant of bail. Accordingly the bail application is dismissed. However, nothing said herein shall prejudice the trial. N.H.Q./R‑186/L Bail refused.