1977 PLP 512 (SCMR)

Date of hearing : 17th October 1977. NASIM HASAN SHAH, J.‑This is a petition for leave to appeal against the order of the Lahore High Court, dated 21‑8‑1977, whereby the petitioner's application for bail was refused.

2. The facts, briefly stated, are that the petitioner along with five others stands accused for the murder of Mst. Said Begum. According to the F. I. R. lodged at the instance of one Sardara, he along with his wife Mst. Said Begum and others were returning from the fields at Maghrib prayer time. Muhammad Ismail petitioner armed with a gun, Hakam Ali and Muhammad Inalat co‑accused armed with hatchets, Shah Alam armed with a stick and Muhammad Fazal armed with a pistol lay in ambush in the way. On seeing them, Shah Alam accused raised a Lalkara whereupon Muhammad Ismail petitioner fired a gunshot which hit Mst. Said Begum deceased on the right jaw and she fell down and died at the spot. The accused fled away after the occurrence.

3. The motive alleged is that two cows of Hakam Ali (one of the accused) strayed into the fields of the complainant and destroyed the crops. In retaliation, the complainant party had gathered those cows in their dera. A dispute, therefore, existed over the destruction of crops by the animals of the accused.

4. Before the High Court, it was urged that four of the accused had already been granted bail by it. It was also pointed out that one Fazal Dad had filed a private complaint giving a different version of the incident to the effect that the complainant party was the aggressor and the accused were aggressed and had acted in self‑defence. The High Court held that the petitioner was named in the F.I.R. and allegedly armed with a gun with which he fired hitting Mst. Said Begum, who died at the spot. The four accused, namely, Muhammad Fazal, Hakam Ali, Inayat and Shah Alam were granted bail on the ground that no overt act had been attributed to Them and only the role of instigator had been ascribed to Shah Alam. The case of the petitioner was, therefore, distinguishable from that of his co‑accused who had been granted bail. It was further observed that in so far as the private complaint was concerned, wherein the complainant party had allegedly caused injuries to Mst. Bashir Begum and Fazal Dad and the petitioner and his co‑accused had only acted in the right of private self‑defence was a matter for consideration by the trial Court at the appropriate stage. He accordingly dismissed the application for bail.

5. Before us, it was argued that there were two versions of the occurrence: one given by the prosecution and the other set out in the private complaint, namely, that the cattle of the complaisant party strayed into the fields of Fazal Dad and destroyed the crops and while Fazal Dad was taking the cattle to the Cattle Pond, the complainant Sardara along with his two brothers and three other relatives, armed with lethal weapons, like guns and hatchets, attacked Fazal Dad and snatched away their cattle. In this attack Fazal Dad received four gunshot injuries and several hatchet wounds. Mst. Said Begum deceased, wife of Sardara and sister‑in‑law of Fazal Dad, tried to intervene and thus received a gun shot injury on her right jaw and died as a result of this injury. Another woman, Mst. Bashir Bibi, also tried to intervene and received injuries at the hands of the complainant party. Thereafter, the complainant party, taking advantage of the death of Mst. Said Begum lodged a report implicating six innocent persons. In view of the existence of the two conflicting versions it was urged that the Court has yet to decide which of the partial was the aggressor. Hence the case was one of further inquiry covered by the provisions of section 49712), Cr. P. C. and, therefore, the petitioner was entitled to bail.

6. After hearing the learned counsel .for the petitioner, we are of the view that the High Court in refusing bail has not exercised its discretion either improperly or illegally. The petitioner was allegedly armed with a gun with which he fired and hit Mst. Said Begum who died at the spot. No doubt, there are two versions of this incident, but the appropriate stage to examine them will be at the trial. Hence we see no ground for interference with the order of the High Court.

7. We may, however, remark that the incident took place on 20‑1‑1976 and the trial has not yet begun. We are informed that there are a large number of sessions trials pending in the Court of the Session Judge, Gujrat, and it will take several years before the turn of this trial to commence occurs. We would observe that the Sessions Judge would give priority to this case and dispose it of expeditiously. Petition dismissed.