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Criminal Petition for Special Leave to Appeal No. 76‑R of 1981, decided on 3rd March, 1982.

(Against the judgment and order dated 16‑3‑1981 and 31‑10‑1981 of the Lahore High Court, Rawalpindi Bench in Cr. M. Nos. 84‑B/1981 and 388‑B/1981).

----S. 497/498‑Bail‑Death of one person caused and petitioner charged for such murder‑‑As to who took law in his own hands not yet established‑Case not one entitling accused to bail and to hold otherwise on points raised amounting to prejudging case on merits -Petition dismissed as being without merit‑Constitution of Pakistan (1973), Art. 185(3).

M. Ishaq Khan, Advocate Supreme Court and M. Imtiaz M. Khan Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 3rd March, 1982.

This is a petition for special leave to appeal against the orders dated 16‑3‑1981 and 31‑10‑1981 of the Lahore High Court, Rawalpindi Bench passed in Cr. M. No. 84‑B/81 and Cr. M. No. 388‑B/81 respectively.

2. The relevant facts are that a dispute had arisen between Muhammad Ajaib, accused and Ibrahim, P. W. over a water spring. Muhammad Ajaib had dissuaded the women folk of Ibrahim, P. W. from fetching water from the disputed spring. In consequence, on 14‑8‑1980 the complainant party was called to the house of Fateh Din, a relative of the accused at about noon time, where the accused party also arrived armed with various weapons and caused injuries to the P. Ws. Muhammad Hussain, Muhammad Yasin and Muhammad Matloob from the complainant side also arrived at the spot hearing the uproar and they were also injured by the accused. It was further alleged that Ghulam Rasul and Muhammad Yaqub hurled stones on the accused in their self‑defence. Muhammad Yaqub, deceased, allegedly received a hatchet blow at the hands of the petitioner and a case under section 307 read with section 149/148, P. P. C. was registered against the petitioner and 8 others. Muhammad Yaqub died on 15‑8‑1980 and section of law was altered from 307 to 302, P. P. C. All the other accused were released on bail by the Additional Sessions Judge but the petitioner's bail application was rejected per order dated 15‑10‑1980. The petitioner then moved an application for bail before the Lahore High Court, Rawalpindi Bench which was also rejected vide order dated 16‑3‑1981. He made another application for bail before the High Court but the case also met the same fate vide order dated 31‑10‑1981.

3. Learned counsel for the petitioner contends that the orders of the learned Additional Sessions Judge and that of the High Court are contrary to the provisions of law and the petitioner is entitled to bail. It is evident that the occurrence took place in the house of a person related to the accused petitioner. Thus it was a case of aggression by the complainant side and the accused in all probabilities acted in self‑defence and this act alone is sufficient for the concession of bail to the accused petitioner ; that there are two versions of the occurrence one in favour of the accused is to be given preference and the case was one of further inquiry into the guilt of the petitioner. Over and above this the petitioner had remained in the lock up for 1.1/4 years and an early trial was not in sight. In addition to this the petitioner is also suffering from urinary infection and his health is rapidly deteriorating in jail day by day.

4. We have considered the contentions of the learned counsel and are, of the view that it has not yet been established as to who had taken the law into his own hands. The act in itself had resulted in the death of on person for which the accused petitioner is charged. Thus it is not a case, where the accused petitioner is entitled to bail and to hold otherwise on the points raised would be prejudging the case on merits. Consequently, the petition is dismissed as being without merit.

Petition dismissed.

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