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Criminal Miscellaneous No. 4304/8 of 1976, decided on 20th December 1976.

‑‑ Ss. 497 & 498‑ Petitioners mercilessly beating victim with fists, kicks and dandas, with express intention to do away with deceased Bail refused, in circumstances.

Maqbool Maki Malik for Petitioner.

Zafar Pasha Chaudhry for the Complainant.

Sharif Uppal for the State.

Dilawar Hussain petitioner has applied for bail vide Criminal Miscel laneous No. 4304/13‑76 whereas Sagher Hussain and Abid Hussain and Dilawar Hussain who has been also mentioned as petitioner No. 3, have 'applied for bail vide Criminal Miscellaneous No. 4367/13‑76. The allegation against the petitioners is that all the petitioners gave beating with kicks and fists to the deceased Niaz Ali, brother‑in‑law of Dilawar Hussain petitioner as a result of which he ultimately dated. A case under section 302/24, P. P. C. was registered against the petitioners vide F. I. R. No. 257 dated 27‑7‑Ig76. I will dispose of bath these applications by a single order as they arise out of the same incident.

2. Learned counsel appearing on behalf of the petitioners have assailed the order of the carried Additional Sessions Judge, Lahore, dated 15‑10‑1976 by which they were refused bail, on the following grounds

(i) That the injuries assigned to the petitioners were all simple in nature caused by blunt weapons;

(ii) that the case of the prosecution itself wit that the petitioners were empty‑handed and only used fists and gave kicks to the deceased

(iii) That the doctor himself was not sure whether the death was directly caused by the injuries assigned to the petitioners and therefore, he referred the matter to the Bacteriolq1t, Lahore for ultimate opinion. According to the report of the Bacteriologist, the death occurred due to peritonitis and toxamia at d result of perforation in the small intestines; and

(iv) that there was no premeditation for committing this offence with the petitioners as they were closely related a the deceased who was their brother‑in‑law and this was obvious s they were not armed with any lethal weapons."

3. On the other band, learned counsel for the State assisted by the learned counsel for the complainant has submitted that it is not always the weapon, which determines the intention of s person who commits an offence of murder, but does he adopt the impact of the blow0d means for the commission of such crime. It was further urged that a positive opinion has come on the record by the Bacteriologist that the death was caused due to peritonitis and toxaemia due 0 perforation in the small intestines. He referred to the area of injuries cussed by the petitioners to show that the area included part of small intestines, which was subject of these blows.

4. I have given my anxious thought to the contentions raised from both sides and have perused the order of the Additional Sessions Judge carefully. The report of the post‑mortem examination on of dead bodies of Niaz Ali deceased revealed that seven injuries were found on his person with considerably contused area on the lower part of chest and other parts of the body. Learned Additional Sessions Judge afar taking into consideration the fact that fists, kicks and dandas were aced against the deceased, person, was fully justified in his conclusion that tie deceased was mercilessly beaten who fell victim to their concerted attack‑ 'I here is also mention in the F. I. R. chat intention was expressed at the spur of moment to do away with the deceased by all the accused/petitioners‑ In such circumstances it cannot be said that the act of the petitioners wee such which would not be punishable with death, imprisonment for life or ten years' R. I. Therefore, A find no substance in both the applications, which Ire hereby dismissed.

Petition dismissed.

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