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Criminal Bail Application No. 1333 of 1976, decided on 22nd December 1976.

----S. 497‑Petitioner; accused of murderous assault specifically attributed grievous injury on chest of prosecution witnesses‑Bail declined, in circumstance.

S. 497 read with Penal Code (XLV of 1860), S. 34‑Grievous injury on chest of injured prosecution witness specifically attributed to co‑accused and prosecution yet to prove application of S. 34, P. P. C. against petitioners‑Bail granted in circumstances.

M. M. Pirzada for Applicants.

Ghulam Ali Memon, A.‑G. assisted by Mr. Ahmed Mian Soomro for the State.

The applicants are accused in a case under section 307/324/34, P. P. C. The prosecution case is that on 8‑5‑1976 at about 8‑30 a.m. complainant Mohd. Rafiq was at his house when one Arshad informed him that some persons were beating his brother Sikandar Hayat near the Muslim Commercial Bank. Complainant went there alongwith his younger brother Javed 1qbal and saw 4 persons namely Wali Mohd., Mohd. Ramzan, Niaz and Ali Mohd. beating Sikandar Hayat. Complainant thereupon told the aforesaid 4 accused that they should feel ashamed as they being four in number were fighting with one person. On this, accused Niaz took out a knife and gave knife blows to Sikandar Hayat at his chest as a result whereof the latter fell down. Accused Wali Mohd. then gave a knife blow to the complainant on his arm and accused Ali Mohd. and others caused injuries to Javed 1qbal and thereafter made good their escape. On the side of the accused a counter F. I. R. was lodged by accused Mohd. Ramzan stating that he and his two younger brothers after receiving their cousin's family were returning to their house when near Muslim Commercial Bank a motor‑cyclist, coming from behind hit their child Naheed Fatima aged 3 years resulting in simple injuries to her. He thereupon protested with the motor‑cyclist, namely Sikandar Hayat who however went away after tendering apology. After a short while, however, same motor‑cyclist returned with others in a. car and after parking the car they came out and one of them caught hold of Niaz Mohd. and others began to beat him while motor‑cyclist pulled out a knife and gave injury to Niaz Mohd. on the palm of his hand.

All the accused filed Bail Application No. 1065/76 before the learned Additional Sessions Judge who granted them bail on the grounds that supplementary report as regards the nature of the injuries had not been received by that time and that one of the accused was to be married next day. Subsequently, however, complainant filed an application in the High Court for cancellation of the bail of the accused but the same was disposed of with an observation that counsel should move the trial Court before coming to the High Court. Accordingly, the complainant moved the trial Court for cancellation of bail, which was allowed and the bail of the accused was cancelled, by the same learned Judge by his order dated 12‑11‑1976. Hence this application on behalf of the 3 accused.

Mr. M. M. Pirzada, learned counsel for the applicants, contended that it being an admitted position that the child of the accused was hit by the motor‑cycle driven by injured Sikandar Hayat which resulted in this incident, it was a case of fight taking place on the spur of moment without any premeditation an therefore section 34, P. P. C. was not attracted in this case. He next contended that the learned Additional Sessions Judge having earlier granted bail on the ground that there were two cross cases between the parties, he was not justified in cancelling it subsequently on the said ground. He lastly contended that one of the accused Niaz Mohd.' also received injury on his palm with a knife. It could be legitimately urged, therefore, that the alleged injury to the complain ant party were caused in self‑defence.

Mr. Ghulam Ali Memon, learned Advocate‑General‑ assisted ‑ by Mr. Ahmed Mian Soomro, stated that the injury caused by Niaz Mohd. To Sikandar Hayat on the chest was found to be grievous and this part having been specifically assigned to Niaz Mohd. in the F. I. R. he was not entitled to bail. With regard to the remaining applicants however, he stated that since this incident took place as a result of simple injuries being caused to the child of the accused it cannot be ruled out at this stage that the incident was not premeditated and therefore it has yet to be established at the trial by the prosecution whether the other applicants were construc tively liable for the serious injury caused to Sikandar Hayat and left the matter to the discretion of the Court.

The incident is not disputed. It is also not disputed that the child of the one of the accused was hit by motor‑cycle driven by Sikandar Hayat, for which the latter was reprimanded by one of the accused. It is also on record that the incident took place subsequently on the arrival of the complainant alongwith his brother Javed Iqbal. These circumstances would prima facie suggest that fight between the parties took place on the spur of the moment in which case for the purposes of bail, the case of each accused would require consideration on the basis of the individual act done by him. Injured Sikandar Hayat is said to have received two injuries on his chest one of which has been found to be grievous and this injury has been specifically attributed to applicant Niaz Mohd. in the F. I. R. In his case therefore, I do not find a fit case for bail and I reject his application.

The injuries in the case of P. W. Javed Iqbal as well as Mohd. Rafiq, however, have not been shown to be grievous and therefore the prosecution has yet to establish its case under sections 304 read with 34, P. P. C. against, R the remaining two applicants. In these circumstances, I am inclined to gram bail to these two applicants. While therefore rejecting the application of Niaz Mohd. I grant bail to each of the applicants Wali Mohd. and Mohd. Ramzan on their furnishing one surety each in the sum of Rs. 10,000 with P. R. in the like amount to the satisfaction of the trial Court.

Order accordingly.

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