2006 PLP 646 (MLD)

M. BILAL KHAN, J.

Muhammad Nasir alias Nasir Hussain son of Siraj Din, Abdul Rashid son of Roshan and Jamshed Ali son of Abdul Rashid, the petitioner, by filing the instant petition seek post-arrest bail in case F.I.R. No.294, dated 23-11-2004, registered at Police Station Darya Khan, District Bhakkar for offences under sections 302, 324, 148, 149, P.P.C.

2. The F.I.R. has been recorded at the instance of Muhammad Iqbal son of Abdullah, wherein it was alleged that on 23-11-2004, about 12-30 p.m., he was present at his Dera in Chak No.9/TDA along with his brothers Muhammad Nisar, Dildar, his mother Mst. Akbari Bibi, and Muhammad Yaqoob son of Abdul Ghani, when Nasir Hussain, Abdul Rashid, Jamshed (petitioners) Mujahid Hussian, Siraj Din, Ghulam Mustafa, Muhammad Younas and Ghulam Abbas, all carrying fire-arms arrived there and started firing; they wanted to take forcible possession of the disputed land, which was under his occupation; after entering into the Dera, Mujahid Hussain fired shots with his .12 bore gun, which hit his mother Mst. Akbari Bibi in the chest, abdomen, bicep of left arm, back and left hand, who fell down and succumbed to her injuries; Siraj Din fired with his .12 bore gun hitting Muhammad Yaqoob at his left leg, right knee and shin; Nasir Hussain (petitioner) fired with his .12 bore gun, which struck Muhammad Nisar on his left arm, testicles, and right thigh; Ghulam Mustafa fired with his .12 bore gun hitting Dildar on the right knee; the fire shot made by Muhammad Younas with his gun struck on the forehead of the complainant; Abdul Rashid, Jamshed and Ghulam Abbas made firing, which. also hit Muhammad Yaqoob and Muhammad Nisar causing them as also Dildar Hussain to fall down in an injured condition; on alarm raised by his companions, Muhammad Younas and his father Abdul Jabhar arrived at the scene and witnessed the occurrence. While leaving the scene, Mujahid Hussain fired at Ghulam Abbas and injured him. The motive, according to the complainant, was that the complainant party and the accused party were locked in a dispute regarding agricultural land and according to him the accused party after due deliberation and consultation had launched the murderous assault after having armed themselves with fire-arms. Resultantly, the instant F.I.R. had been recorded.

3. The petitioners applied for their post-arrest bail, which was turned down by the learned Additional Sessions Judge, Bhakkar vide order dated 31-5-2005. Hence, the instant petition.

4. I have heard the learned counsel for both the sides at considerable length and have also gone through the record brought by Ghulam Akbar, S.-I.

5. It has been observed that the roles attributed to each one of the petitioners are duly incorporated in the F.I.R., the contents whereof in toto have been narrated hereinabove. The medico-legal report of A Muhammad Nisar, i.e., MLR No.409 of 2004 makes quite a frightful reading. The injuries recorded therein were as under:-- (1) Fire-arm entry size of 13 x 6 cm on the outer side of the left fire-arm exit size of 18 x 9 cm inner side of the left fire-arm. Margins inverted and everted and blackening and tattooing present, underlying muscles, nerves and bones severely damaged. (2) Fire-arm 13-pellet entry wound in the area of 22 x 16 c.m. on the front and inner side of the right thigh including 4 pellet entry in the testicles and penis. Penis is swollen and blackened. Margin inverted and surrounding blackening on the thigh. (3) Fire-arm 5-pellet entry wound on the top of left thigh blackening margins inverted. Likewise according to the Medico-legal Report No.410 of 2004, Dildar son of Abdullah also received fire-arm entry wound 12 x 14 cm just above the ankle joint underlying muscles, nerves and bones were severely damaged. Margins inverted and everted, blackening and tattooing present, corresponding hole on the Shalwar present. According to the Medico-legal Report No.411 of 2004, the injuries suffered by Muhammad Yaqoob son of Abdul Ghani were depicted as under:-- (1) Fire-arm size of 11 x 9 cm on the left leg, underlying muscles, nerves and bones severely damaged. Margins inverted and everted, blackening present, entry and exit character cannot be differentiated corresponding holes on Shalwar were present. (2A) Fire-arm entry wound size 6 x 4 cm with surrounding blackening, exit wound size 4 x 3 cm inner side of leg, blackening present. (2B) Fire-arm (2-A) entered into the upper right leg of size 7 x 7 cm, 5 cm apart corresponding holes on Shalwar are present. The locale and the nature of injuries are sufficient to prima facie show the intention of the attackers. The weapons allegedly used by the petitioners had been recovered from them. There is no merit in the argument of the learned counsel for the petitioners at least for the limited purpose of grant of bail to the petitioner that it is yet to be determined as to which party had committed aggression. Likewise I find no merit in the argument of the learned counsel for the petitioners that since general firing had been attributed to Abdul' Rashid and Jamshed (petitioners) and that since it is yet to be determined as to which petitioner caused which injury to Muhammad Yaqoob, Muhammad Nisar and Dildar Hussain, I therefore, it is a case of further inquiry. It is now well-settled that non-attribution of any specific injury to the deceased or the injured would not make out the case against accused one of further inquiry, as it is immaterial as to whose shot proved fatal. Reference may profitably be made to the case of Hazurdad v. Sajid Khan and others (1998 PCr.LJ 633). In the case of Khamiso and another v. The State (1999 PCr.LJ 9), the Hon'ble Sindh High Court relying on the dictum of the Hon'ble Supreme Court of Pakistan in the case of Haji Ghulam. Khan v. Gul Deraz Khan and another (1995 SCMR 1765), observed that it was immaterial at bail stage to determine as to whose shot proved fatal. In the case of Sher Bahadar v. Haji Ghaffar Ali Khan and another (1999 PCr.LJ 403), a Division Bench of the Hon'ble Peshawar High Court placing reliance on the case of Haji Ghulam Khan (ibid) as also on the case of Muhammad Aslam and another v. The State through A.G., Punjab and another (1997 SCMR 251) had refused bail-to the petitioner, who had been attributed fire-shots along with his co-accused at the deceased despite the plea that it was yet to be determined as to whose fire-shot had proved fatal.

6. There is ample incriminating material available on record to prima facie connect the petitioners with the crime imputed to them and the offences charged with attract the prohibitory clause of section 497(1), Cr.P.C.

7. Resultantly, there being no merit in this petition, the same is dismissed. H.B.T./M-68/L??????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.