1999 P Cr (PLP)

Complainant/petitioner through this application seeks cancellation of bail granted by Additional Sessions Judge, Arifwala, vide his order, dated 19-6-1997 and 17-7-1997, to respondents Nos.2 and 3, respectively, in F.I.R. No.551 of 1996, dated 16-11-1996, under section 302/324/34, P.P.C. registered with Police Station Saddar, Arifwala, District Pakpattan.

2. Briefly the facts of the case as narrated by the prosecution in the F.I.R. lodged by the complainant/petitioner are that on 16-11-1996 at about 4-30 p.m. he alongwith his two sons namely Sarfraz deceased and Walayat were busy in their fields, when a female donkey of the complainant went into the fields of respondents (Nos.2 and 3) whereupon a quarrel ensued. Respondent No.2 caused fire-arm injuries to the deceased Sarfraz whereas respondent No.3 also caused fire-arm injuries to his other son Walayat. In consequence of the fire-arm injuries Sarfraz died, whereas Walayat received serious injuries in his abdomen.

3. The Additional Sessions Judge vide his order, dated 17-7-1997, granted bail to respondent No.2 on the ground that in exercise of right of self-defence on behalf of his brother respondent No. 3, who had 3 injuries on his person, caused the death of Sarfraz and injuries to Walayat.

4. Learned State Counsel states that in the final Zimni submitted by the D.S.P. concerned, dated 14-12-1996, he held both the respondents guilty.

5. Learned counsel for the petitioner submits that in the first instance, there was no right available to respondent No.2 and if by any eventuality the right of self-defence was available, it was certainly exceeded because Sarfraz was murdered and his brother Walayat was caused grievous injuries. The discretion exercised by the trial Court was arbitrary in nature and should be recalled.

6. Learned counsel for respondents Nos.2 and 3 submitted that injuries on the person of respondent No.3, which are three in number, have not been explained by the prosecution, which show that the respondents acted in exercise of right of self-defence and it is yet to be determined by the trial Court as to which of the party was aggressor.

7. I have considered the arguments of the learned counsel for the petitioner, complainant and the State. No doubt the injuries on the person of respondent No.3 have not been explained, in any case my tentative view is that the force used by respondent No.2 was totally disproportionate to the injuries found on the person of respondent No.3. In these circumstances the discretion exercised by the Additional Sessions Judge in favour of respondent No.2 was clearly arbitrary and was not in accord with the sound principles and guidelines provided by the Superior Courts from time to time. Consequently, I have no hesitation to accept this application to the extent of respondent No.2. The bail granted by the Additional Sessions Judge to respondent No.2 Muhammad Ashraf vide his order, dated 17-7-1997, therefore, is recalled. He shall be taken in custody to face his trial.

8. As far as respondent No.3 is concerned injuries on his person were suppressed by the prosecution. I do not feel inclined to interfere in the order of the Additional Sessions Judge, dated 19-6-1997, granting bail to respondent No.3. Application so far as respondent No.3 is concerned does not succeed and is dismissed.

9. I am told by the learned counsel for the respondents that the case is fixed for trial and a direction be issued to the trial Court to decide the case expeditiously. The trial Court shall without any loss of time decide the case expeditiously. H.B.T./A-8/L Order accordingly.