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Criminal Miscellaneous Nos. 1710//B and 2036/B of 1978, decided on 11^th June 1978.

S. 498-No overt act ascribed to one petitioner while part ascribed to other not supported by post-mortem report--Both petitioners allowed bail in circumstances.

Kh. Sultan Ahmad for Petitioners.

Sh. Ziaud Din for the State.

Munir Ahmad Bhatti for the Complainant.

Criminal Miscellaneous No. 1710/B of 1978, and Criminal Miscellaneous No. 2036/B of 1978, have been separately filed by Pervaiz alias Billoo and Shah Din petitioners who along with three others are implicated in a case under sec tions 302/34, 148/149, P. P. C. at Police Station Yakki Gate, Lahore on the 29th of September, 1977. Since the petitions are connected, they are being disposed of by this order. The deceased in this case is Tariq. The allegation against the petitioners is that Shah Din petitioner was armed with a revolver and Pervaiz petitioner was armed with a pistol, and among their three co-accouse& Hamayun was armed with a dagger, Misbahuddin was armed with a pistol and Jamshed was also armed with a pistol. It is stated that all the five of them confronted the deceased and attacked him. In the narration given in the F. I. R. Jamshed co-accused fired a shot through his pistol which hit the deceased on the left side of his neck, Misbahuddin co-accused fired a shot through his pistol which hit on the right side of the head of the deceased. Thereafter, Hamayun co-accused gave a dagger blow to the deceased which fell on his left flank. According to the post-mortem report which I have gone through with the assistance of learned counsel for the State and the Investigating Officer, the deceased received three injuries on his person, out of which two were caused by fire-arm and one by sharp-edged weapon. All the three injuries are specifically attributed to the three co-accused of the petitioners. The part ascribed to Shah Din petitioner in the F. I. R. is that he gave a blow with the steel revolver on the back of the head of the deceased. But- there is no such injury caused by blunt weapon on the back of the head of the deceased. It is, therefore submitted that the part ascribed to Shah Din petitioner is not being supported by the post-mortem report/medical evidence. As for Pervaiz petitioner, no part is ascribed to him in the F. I. R. except that it is stated that he was armed with pistol. In the entire narration of the F. I. R. the name of Pervaiz petitioner does not appear after it is described that he was armed with a pistol. Parts are ascribed to au the others except him. Even a lalkara or threat is not attributed to him. It is, therefore, submitted on his behalf that he was entitled to bail since no overt act was ascribed to him. Learned counsel for the complainant on the other hand argues that section 148/149, P. P. C. were made applicable to the instant case and since they we accompanying the rest of the accused, they were not entitled to bail. Be the as it may, no overt act is ascribed to Pervaiz petitioner and part ascribed to A Shah Din petitioner is not being supported by the post-mortem report. In that view of the matter, and without expressing any opinion on the merit of the case, I admit the petitioners to bail subject to their furnishing security in the sum of Rs. 30,000 (Rupees thirty thousand only) each with two sureties each in the like amount to the satisfaction of the Assistant Commis sioner, Lahore.

These petitions stand disposed of.

Petitions allowed

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