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Criminal Miscellaneous No. 4758/11 of 1974, decided on 4th February 1975.

----S. 497-Bail-Accused petitioner grievously injured on head by a blunt weapon but such injury remaining unexplained-Deceased meeting death due to blow given by another accused and no overt act ascribed to petitioner in so far as death of deceased concerned-- Vicarious liability of petitioner having to be decided after recording of evidence, on existing state of affairs, petitioner, held, entitled to grant of bail-Penal Code (XLV of 1860), S. 302/307/34.

Rafiq Ahmad Bajwa for Petitioner.

Syed Maqbool Hussain for the State.

The petitioner along with three others has been accused of the commis sion of offences under section 302/307 read with section 34. P. P. C. It is mentioned in the F.1. R. that the petitioner was armed with a darat while his three other co-accused, one of them being his son, Habib, were variously armed. There bad been a dispute between the parties about grazing of a horse two days earlier than the incident. The prosecution story is that Anwar P. W. and his brother Liaquat were passing m front of the house of the accused when they emerged there from and caused injuries to Anwar. Manshi deceased, the father of Anwar came to intercede when Habib gave him a blow with the blunt side of the hatchet as a result of which he fell unconscious and died soon after that.

2. The learned counsel for the petitioner submits that in this case Yaqoob, Habib and Zafar Hussain accused and Mst. Sharifan Bibi wife of Yaqoob sustained injuries which remained completely unexplained by the prosecution. It is not denied that the occurrence took place near the house of the accused and it is the submission of the learned counsel that in view of the large number of injuries sustained by the side of the accused the plea of the accused that the prosecution side were the aggressors cannot be held to be improbable.

3. The learned Additional Sessions Judge observed in- his order that the challan bad been filed in Court on 27th of November 1974, but the learned counsel joins issue on this and submits that no challan has so fir been filed. On the other hand, the learned counsel for the State submits that according to his instructions the challan has been filed but he is not in a position to state as to on what date was it filed and before which Court is it pending.

4. The fact, however, stands that no evidence has been led so far. Mst. Sharifan one of the injured persons on the accused side, has filed a complaint in Court on 16th of September, 1974, against Anwar, Liaqat and one Akbar. Whether or not there is arid substance in the plea of the accused that they were attacked in their hr; se by the complainant party shall be decided by the proper Court after recording evidence.

5. It is, however, clear that the injuries on the silo of the accused, out of which one sustained by Yaqoob on the head by a blunt weapon and the other sustained by Habib with a sharp-edged weapon, have been found to be grievous, remained unexplained. The deceased, Munshi, met his death because of the blow given to him by Habib, the co-accused of the petitioner. No overt act so far as Munshi is concerned, is ascribed to the petitioner. The vicarious liability of the petitioner shall be decided after recording evidence, beat on the state of facts as they are, I feel that the petitioner is entitle to an order of grant of bail. He shall be realeased on bail in the sum of Rs. 10,000 (Rupees ten thousand) with one surety in the like amount to the satisfaction of the Assistant Commissioner, Sheikhupura.

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