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Criminal Miscellaneous No. 1154-B of 1980, decided on 29th April, 1980.

--- S. 497-Bail-[Murder-case]--Investigation Agency itself accepting it a case of counter versions and challaning both parties in counter versions-Nothing to ascertain as to which party aggres sor and which aggressed-Case of petitioners, held, one of further enquiry--Petitioners allowed bail, in circumstances.

Khalil-ur-Rehman v. The State 1979 S C M R 168 ; Wakeel Hassan v. The State 1976 S C M R 159 and Fazal Muhammad v. Ali Ahmad and 3 others 1976 S C M R 391 ref.

Fazal-i-Miran Chauhan for Petitioner.

Akhtar Hussain for the State.

This order disposes of Criminal Miscellaneous No. 1154-B/80 and Criminal Miscellaneous No. 1014-B/80, as they arise out of the same case.

In respect of the murder of Fazal Dad on the 20th July 1979, at about noon time in the area of mauza Khawaspur within the Police Station of Lala Musa, District Gujrat, two cross cases have been registered, one under section 307, P. P. C. etc. against the complainant party in which they are on bail, and the other against Muhammad Afzal and Muhammad Ashraf (petitioners in Criminal Miscellaneous No. 1014-B/80) and Azmat (petitioner in Criminal Miscellaneous No. 1154-B/80) and their tenant co- accused.

2. The case of co-accused came up before me on the first occasion (Criminal Miscellaneous No. 4277-B/79) where Criminal Miscellaneous No. 4399-B/79 was also disposed of by granting bail to both the accused. The facts have been recapitulated therein and this may be read as a part of and in furtherance of my order, dated the 15th of December, 1979, passed in Criminal Miscellaneous No. 4277-C/79.

Manzur Hussain co-accused was allowed bail as he was suffering from diabetes, and also for the reason that his name has been placed in column No. 2. And the other accused were allowed bail for the reason that they were not armed with any fire-arm weapons, and they are also not attributed any injuries to the deceased, while Naveed Abbas and Feroze co-accused were empty handed and Khalil Javed and Aurangzeb co-accused were attributed only lalkaras.

3. Counter-version were advanced at the earliest opportunity and the police found substance therein, and therefore, registered two cross cases, one under section 307. P. P. C. against the complainant party and the other under section 302, P. P. C. against the petitioners' side.

It has been argued that since the deceased had four gunshot injuries on his person, the prosecution was misled in believing that the same were four independent shots. and therefore, they decided to attribute four firearm weapons to the three petitioners and Manzur Hussain accused, completely overlooking that two injuries on the person of the deceased were wounds of entry and the two wounds were of exit. Azmat Hussain (petitioner in Criminal Miscellaneous No. 1154-B/80) has been attributed a rifle injury whereas there is no rifle-injury on the person of the deceased. Manzur Hussain co accused, who is an old patient of diabetes was found innocent during the course of investigation, the investigation was conducted by the Superintendent of Police and has name was placed in column No. 2. During the course of investigation the Police recovered 303-bullets and pellets of -12 bore cartridges from the wall of the house of Manzur Hussain co-accused. It is the case of the petitioners that Fazal Dad was not involved in partisanship arid he died as a consequence of the firing of the other party and but for has getting injury the complainant party would have burnt the house of Azmat Hussain (petitioner in Criminal Miscellaneous No. 1154-B/80) in whose house the co-accused had taken refuge when they were subjected to a surprise attack.

4. The learned counsel for Muhammad Afzal and Muhammad Ashraf petitioners has also pointed out a possible conflict with the medical evidence in relation to the prosecution version.

5. In this view of the matter, it is case of counter versions, and the investigation Agency itself has accepted the same, by the challaning both the parties in counter versions, therefore, the case of the petitioners is one of further enquiry as, presently, it is difficult to say as to which party is the aggressor, and in this regard I would refer to Khalil-ur-Rehman v. The State (1979 S C M R 168), Wakeel Hassan v. The State (1976 S C M R 159) and Fazal Muhammad v. Ali Ahmad and 3 others (1976 S C M R 391) of the same volume.

In the circumstances stated above, all the three petitioners, namely, Muhammad Afzal and Muhammad Ashraf (Criminal Miscellaneous No. 1014-B/79) and Azmat Hussain (Criminal Miscellaneous No. 1154-B/80) are enlarged on bail subject to their furnishing bail bonds in the sum of Rs. 25,000 (Rs. Twenty-five thousand) each with two sureties each in the like amount to the satisfaction of trial Court.

Bail allowed.

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