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Criminal Miscellaneous No. 1998‑B of 1981, decided on 4th August, 1981.

‑‑ S. 497‑Petitioner though armed with a shot‑gun and allegedly having motive, not firing on deceased at three occasions‑No empty recovered from place of occurrence‑Bail allowed‑Penal Code (XLV of 1860), S. 148/364/302/149/109.

‑‑----S. 497‑Bail‑Nature of accusation ‑Held, to be kept in view while deciding question‑of bail.

Rafiq Ahmad Bajwa and Shaukat Rafiq Bajwa for Petitioner.

Nazar Muhammad Dogar for the State.

This is an application for bail on behalf of Muhammad Tufiil in a case under section 148/364/302/149;109, P. P. C. with regard to the abduction and murder of Muhammad Feroze. It is to be noted that firstly F. I. R. No. 90 was registered at Police Station, Ahmad Nagar on 19th August, 1980 at 2‑30 p. m: on the information of Muhammad Iqbal a tenant of the deceased wherein it .was alleged that the petitioner and others variously armed abducted the deceased from village Kalaske in order that he may be murdered and took him towards village Bhooman Bath.

Thereafter on the same day at 5 p m. a case under sections 148/307/ 149, P. P. C. was registered at Police Station, Alipur wherein it was stated that the petitioner and others in furtherance of their common object made murderous assault upon Muhammad Feroze at 3 p. m. near Adda Tanga of village Bhooman Bath. The deceased succumbed to the injuries on his way to the Civil Hospital and section 302, P. P. C. was added accordingly. Since F. I. R. under section 364, P. P. C. had already been registered at Police Station, Ahmad Nagar, copy of F. I. R. No. 118 registered at Police Station Alipur was sent to the S. H. O. Ahmad Nagar for investigation and challan. The S. H. O. Police Station, Ahmad Nagar after investigation challaned the petitioner and others under sections 148/ 364/302/149/109, P. P. C.

2. The prosecution case in brief is that the petitioner and others on account of illicit relation of the deceased with the sister of the petitioner firstly abducted him from Balti Kalaske and and took him to village Bhooman Bath where he was done to death. It is alleged that Khadim Ali, Zafarullah and Riaz co-accused of the petitioner caused injuries with Sotas' on the person of the deceased whereas Muhammad Hussain another co‑accused had caught hold of the deceased by putting cloth round his neck.

So far as the petitioner is concerned, the allegations against him are tat be was armed with a shotgun at the time of abduction as well as at h the time of murderous assault and on both the occasions he fired shots in order to frighten the P. Ws.

3. Learned counsel for the petitioner submits that-

(i) in this case petitioner has been falsely implicated alongwith his brother Zafarullah and two uncles ;

(ii) he did not cause any injury to the deceased and his case, there fore, is distinguishable.

As against this learned counsel appearing on behalf of State argued that the petitioner was armed with a shotgun and he actually fired shots in order to frighten the P. Ws. (ii) there are reasonable grounds for believing that he has committed offence under section 148/364/302/ 149/ 109, P. P. C.

4. After hearing learned counsel for the parties, I find that the petitioner although ‑ armed with a shotgun and allegedly having strong motive did not fire at the deceased on three occasions, firstly, at the time of alleged abduction, secondly, on their way to the place of murder, distance in between two spots is three miles as stated by learned counsel for the petitioner and not controverted by learned counsel for the State, and thirdly, on the place of murder. I further find that no empty was recovered at all from the spot although the allegation is that he continued firing on both occasions. I am of the view that the nature of accusations has also to be seen while deciding the question of bail. In the instant case, the petitioner although alleged to have been armed with a gun did not fire at the deceased with whom he had direct motive.

Looking at nature of accusation, in particular circumstances of the case, I am of the opinion that the matter requires further enquiry. The petitioner is allowed bail in the sum of Rs. 20,000 (twenty thousand) with one surety in the like amount to the satisfaction of Assistant Commissioner. Wazirabad, District Gujranwala.

M.Y.M. Bail granted.

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