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Criminal Miscellaneous No. 2130/8 of 1975, decided on 20^th June 1975.

----S. 498‑Three persons on accused's side receiving 24 injuries during incident but such material fact suppressed in First Information Report by complainant and deceased's death caused by a blow given by another person not filing petition for bail‑Case being one of free fight between parties, each participant, held, responsible for his own act and petitioners not causing death entitled to bail‑‑‑Person causing death injuries can deceased wins a hatchet, held, Lot entitled to bail‑Penal Code (XLV of 1860), Ss. 302/149, 148 & 324.

Shahid Hussain Kadri for Petitioners.

Allah Yar Khan for the State.

S. Shamim Haider Naqvi for the Complainant.

This is an application for grant of bail under sections 497 and 498, Cr. P. C. by Ghulam Nabi, Zulfiqar arid Iftikhar, They are accused alongwith two others of offence under sections 1:18, 302, 324 and 149, P. P. C.

2. Zulfiqar petitioner had earlier filed a petition for bail before arrest (Cr. Misc. No. 4256‑B‑74), but the same was dismissed on the basis of the F. I. R. and the fact that grant of bail before arrest to him would deprive the police of a fair opportunity to investigate the case and make the recovery of the weapons of offence. He and two others have now applied for bail after arrest.

The main contention in the present application is that in the F. I. R. against the petitioners the complainant had suppressed the material fact that three persons from the side; of the petitioners had also suffered as many as 24 injuries during the incident in question. Ghulam Nabi, petitioner, suffered five injuries, one of which was found to be grievous, Iftikhar, petitioner, .had sustained seven injuries, while Anwar Khan (a co‑accused) sustained 12 injuries.

Learned counsel for the petitioners submitted that, in fact, it was the complainant party, who was the aggressor and that in any case, it was a case of 'free fight' in which both sides inflicted injuries on each other. As bas been mentioned above, three persons from the complainant side suffered 15 injuries. One person, namely, Altaf Hussain, from the complainant side died. The petitioner's counsel contended that this was mere an accident because he died of only one dung blow on his head. 'This injury was caused to him by Anwar Khan co‑accused, who is not a petitioner in this application.

Learned counsel for the petitioners submitted further that even if it be assumed that the complainant side was not the aggressor but it was a free fight in which both sides sustained injuries (the petitioners' side receiving far more injuries than the complainant side), the provisions of section 149, P. P. C. would not be applicable, as each person would be responsible for his own acts. He submitted further that, according to the F. I. R., lodged by Abdul Aziz (P. W.) Anwar Khan (not a petitioner) had given blow with his hatchet on the head of Altaf Hussain which resulted in his death, Ghulam Nabi, petitioner No. 1 had given two hatchet blows on the head of Abdul Aziz, both of which were found to tie simple, and. Iftikhar, petitioner No. 2 had given two dang blows to Abdul Aziz which also turned out to be simple. Boota, co‑accused (not a petitioner here), gave dang blows to Hussain while Zulfiqar, petitioner, gave a hatchet blow which fell on the left hand of Muhammad Bakhsh which were found to be simple,

4. I am inclined to agree with the aforementioned contentions of the learned counsel for the petitioners. Under the circumstances mentioned above, Ghulam Nabi, Iftikhar and Zulfiqar, petitioners, are prima facie responsible for their own acts. They did not cause any injury to the deceased, but only Abdul Aziz and Muhammad Bakhsh received injuries at their hands. Considering that one of the injuries caused by Ghulam Nabi, petitioner No. 1 to Abdul Aziz, complainant with his hatchet was on the latters head, it can be argued that he is guilty of" offence under section 307, A P. P. C.

I feel that he is not entitled to grant of bail. The bail application in so far he is concerned, is dismissed.

5. So far as Iftikhar and Zulfiqar petitioners, are concerned, they only caused simple injuries to Abdul Aziz and Muhammad Bakhsh. They are, therefore prima facie, not guilty of offence punishable with death or imprisonment for life. Their application is, therefore, accepted. They are granted bail on their furnishing security in the sum of Rs. 10,000 (Rupees ten thousand only) each, with two sureties each, in the like amount, to the satisfaction of Assistant Commissioner. Gujranwala.

Order accordingly.

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