1988 PLP 82 (MLD)

Riaz Abbasi for State. Petitioner, Muhammad Yousaf, alongwith five others, Manzoor, Riaz, Shamas Din, Anwar and Abid, is accused of the murder of Muhammad Anwar. The incident occurred at about 10 a.m. on 25‑12‑1987 and was reported by Mubarik Shah P.W. at 11.15 a.m. on the same day. The prosecution case is that Shamas Din accused was having a wall of the mosque constructed. Mubarik Shah complainant accompanied by Muhammad Anwar deceased happened to come to the mosque; there Shamas Din was sitting armed with .12 bore gun. On seeing the complainant and Muhammad Anwar deceased, Shamas Din shouted that his enemies have come and they should not go alive. Upon being so exhorted Manzoor, Riaz, Muhammad Yousaf, Anwar and Abid entered into the Mosque. Shamas Din fired at the deceased, hitting him on his head. Muhammad Anwar collapsed and then Manzoor fired at him also hitting on his head. Muhammad Yousaf petitioner fired his gun hitting Muhammad Anwar on his shoulder. Riaz, Anwar and Abid accused persons also kept on firing shots. In the meantime Fida Hussain Shah and Khizar Hayat also reached and Abid accused fired at Fida Hussain hitting him on his right leg.

2. Two and a half years earlier, a case had been registered against the complainant and three others for the murder of Nasir, nephew of Muhammad Yousaf petitioner and Sister's son of Manzoor and Riaz accused persons. In that incident Shamas accused had also been injured. At the trial, Mubarik Shah and his co‑accused Zahid were acquitted and the other two accused persons were convicted and sentenced. Some 8 or 9 months before this incident Muhammad Anwar's son, Muhammad Afzal, was caused injuries and a case under sections 324 and 325 was registered against Shamas, Riaz etc.

3. The defence plea of the petitioner and his co‑accused before the police was that on account of enmity the complainant party had attacked and fired shots at the petitioner and his co‑accused and it was in self‑defence that Muhammad Anwar and Fida Hussain were injured.

4. It appears that during the course of investigation, the Investigating Officer reached the conclusion that the accused party were present in the Mosque when the complainant party armed with guns went there and that there had been an exchange of fire shots between the two parties. None from the accused party was injured.

5. The police have also registered a cross case against the six persons of the complainant party namely Mubarik Shah, Altaf Shah, Akhtar Shah, Latif Shah. Fida Shah and Suleman Shah, Mubarik Shah being the complainant in this case The first four of them, it is stated, are absconders and Fida Shah and Suleman Shah have been allowed bail. It is also stated and the statement is not controverted, that Shamas Din was found innocent of the offence by the Police He has been according to the petitioner's Counsel killed by the complainant part and that is the reason that four of the accused persons in the cross‑case are absconders.

6. Thus, there are two versions of the incident. As stated above, according to the Police investigation, the accused party was present in the Mosque for the construction of a wall when the complainant party had gone there with guns, and the question, will, therefore, he which of the parties had acted aggressively. In any case the injury allegedly caused by the petitioner was on the shoulder of the deceased and had not contributed to his death. I, therefore, allow the petitioner to be released on bail on his furnishing bond in a sum of Rs. 20,000 with two sureties each in the like amount to the satisfaction of the A.C./Duty Magistrate concerned. S.A./M‑1061/L Bail granted.