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Criminal Miscellaneous No. 3223 of 1970, decided on 16^th June 1970.

-----S. 498 read with S. 497 (2)‑‑Bail‑Circumstantial, evidence supporting accused party’s plea that deceased's party trespassed into their house eventually leading to exchange of brick‑bats‑One brick hitting deceased on head fatally‑Incident sudden and unpremeditated and no evidence suggesting someone deliberated, aiming brick at deceased's head‑‑Accused a college‑going boy end in his teens‑ Case, held, covered by S. 497 (2), Criminal Procedure Code, 1898‑­Accused admitted to bail in circumstances.

G. M. Mirza for Petitioner.

Malik Shaukat All for the Complainant.

Ghulam Akbar, D. S. P., Mir Niaz Haider, Inspector and Muhammad Zaki, Sub‑Inspector of Police, also present.

This is a petition for bail under section 498, Cr.P.C.

2. The prosecution case, as contained in the F. I. R. briefly stated is this. On the 2nd of April 1970, at 10 p. m., Chanan Din lodged a report with Police Station Gulberg, Lahore, wherein lie stated that on the day of the occurrence, he along with his son, Saleem, and Sadiq, Zafar Yar, Shamshad and Idrees were sitting outside his office when someone at 5‑30 p.m., told him that his brother's son Nasir, had some; dispute over pigeons with Shameem, Naseem and Naeem whereupon Chanan Din detailed his son, Saleem, to rescue him. Saleem, it is alleged, rescued Nasir and on his return lie narrated the whole incident to his father, Khushi Muhammad. Khushi Muhammad took Nasir to the parents of the accused to complain against their conduct. It is further alleged that after a while, Chanan Din heard some noise emanating from the house of. the accused and, therefore, he along with Saleem, Zafar Yar, Shamshad and Idrees, ran towards the house of the accused, and found that there was uproar of some woman in the house of the accused and that Shameem, Nasim and Naeem were on the roof top of their house and were throw­ing brick‑bats. It is alleged that a brick resulted in the head injury to Khushi Muhammad who succumbed to the injuries subsequently.

3. Learned counsel for the petitioner urged that the prose­cution did not explain the injuries borne by the mother of the accused in this conflict, and that the presence of the blood in the verandah of the house and the damage to the window‑panes of the house go to show that the deceased and his companions were the aggressors. He also urged that this assertion is borne out by the evidence collected by the Police during the investigation.

4. Mr. Niaz Haider, Inspector of Police, C. I. A., who investigated this case under the supervision of Mr. Ghulam Akbar D. S. P. stated that he visited the spot and he found blood stains in the verandah of the house and also noticed that the window‑panes were broken. He further found that the mother of the accused suffered injuries, which were described as a result of the blunt weapon, by the doctor. He further stated that as a result of the investigation he came to the conclusion that there was exchange of brick‑bats between the complainant party and the accused party.

The accused put forth their version before the circle Magis­trate on the 4th of April and 9th of April 1970 and there are indications on the police record which go to show that this version is not false but it may be true. Without going deep into the matter at this stage, it seems to me that the mother of the accused remonstrated with the complainant party and suffered some injuries at their hands, as some blood stains were found in the verandah of the house this supports the plea of the accused party that the deceased party trespassed into the house.

5. Considering all the circumstances, it seems to me that there was apparently exchange of brick‑bats between the two parties and as a result of the brick‑batting, a brick hit the deceased. It is difficult to say on the evidence placed on record that someone had deliberately aimed a brick at the bead of the deceased. As the incident was sudden and unpremeditated, there­fore, the Investigating Agency has challaned the accused under section 304, P. P. C. Two of the accused, namely Naseem and Naeem, have been allowed bail on the ground that they are below 16 years of age. The petitioner is also in his teens. It is a case which requires further inquiry and is covered by section 497 (2), Cr. P. C. The result is that I admit the petitioner, Shameem Ajmal, to bail provided he furnishes security in the sum of Rs. 10,000 with one surety in the like amount, to the satisfaction of the Inquiry Magistrate.

Bail granted.

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