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Criminal Miscellaneous No. 128 and Criminal Appeal No 7 of 1982, decided .on 3rd August, 1982.

‑‑ S. 497 (2)‑Bail‑Trial Court allowing bail to non‑petitioners on ground of their having not inflicted any injury on person of deceased and refusing bail in case of petitioners on ground of having given lathi blow or having caught hold of deceased ‑Allegation against accused petitioner as to catching hold of deceased and deceased being beaten by some of accused‑Not supported by post‑mortem report‑No injury according to such report caused to deceased at places alleged‑Conflict between ocular evidence and post‑mortem report existing evidently, reasonable grounds, held, cannot be said to be not existing to find accused petitioners guilty of commission of offence punishable with death or imprisonment for life‑Further inquiry, being necessary for finding existence of such reasonable grounds, petitioners, held, entitled to be released on bail.

M. Y. Surakhvi for Petitioners (in Bail Application and for Respondents in Appeal).

Rafique Mahmood Khan, Addl. A.‑G. for the State.

Muhammad Saeed for Appellant.

Dates of institution :3rd May and 6th June 1982.

By this order, I propose to dispose of bail application No. 128 of 1982 and Appeal No. 7 of 1982, after treating it as a revision petition, as they arise out of the same case and involve common questions of law and facts.

The facts, briefly stated, forming background to the aforementioned cases, are that in the background of long‑standing enmity existing between the complainant party and the accused, the goat belonging to Mushtaq Ahmed, accused damaged the bajra' crop by entering into the field of the complainant, on 11th October, 1981, at about mid‑day, on which Sabir Hussain, the brother of Zahid Hussain, complainant‑petitioner went to the house of Mushtaq Ahmed and complained to him about the damage caused by the goat to his crop. The said accused took ill of this complaint and abused Abrar Hussain, saying that instead of complaining about this incident, he should have sent the goat to the pound. On the same day, at about 5 p. m., the accused numbering 13, formed unlawful assembly and, in furtherance of its common intention, came armed with Lathis' near the house of Mian Dad, the uncle of the complainant, where the complainant party consisting of eight members had gathered in connection with instal lation of water‑tap and launched an assault on the complainant party causing injuries to almost all its members, with sticks and fist‑blows, besides pelting stones on them. As a result of this attack, Sardar Khan sustained serious injuries to which he succumbed on 13th October, 1981, in the District Headquarters Hospital, Mirpur. The report of the incident was lodged with the Police Station Barnala, Tehsil Bhimber which, after investigation, put up the challan against the accused, under section 5/15, Islamic Penal Laws Act, 1974 read with sections 302/307, 447, 325, 148, 149, A. P. C. in the District Criminal Court, Mirpur. All the accused except Sher Muhammad and Mushtaq Ahmed moved an application for the grant of bail in the trial Court which was accepted except in respect of Walayat Khan, Muhammad Ishaque and Muhammad Ashraf. It is this order of the trial Court that has given rise to the above applications. The above‑mentioned accused have now filed the above bail application while the complainant has filed a revision petition against the order of the trial Court granting bail to rest of the accused who are non‑petitioners in the said revision.

I have heard the learned counsel for the parties as well as the learned Additional Advocate‑General and have also perused the record of the case including the police diaries. From the order .of the trial Court made in the bail application it appears that bail was allowed to the non‑petitioner in the above revision petition on the ground that they bad not inflicted any injury on the person of the deceased while it was refused in case of the A petitioners in the above bail application because out of them, Walayat Khan and Muhammad Ishaque had given 'lathi' blows to the deceased and Muhammad Ashraf‑petitioner had caught hold of the deceased.

Mr. M. Y. Surakhvi, learned counsel for the petitioners has contended that the allegation that the petitioners caused injuries to the deceased with their sticks stands rebutted from the report of the medical officer and, as such, they deserve to be released on bail on the same ground on which other co‑accused have been let out on bail, This argument is not without any force. In the F.I.R., it is alleged that Walayat Khan gave a 'lathi' blow on the right thigh of the deceased while Muhammad Ishaque accused petitioner inflicted 'lathi' blows on his left shoulder. As regards Walayat Khan, accused‑petitioner, the allegation against him is that he caught hold of the deceased while he was being beaten by some of the accused. The above version, as given in the F.I.R. and the statements of the witnesses, does not receive support from the post‑mortem report of the deceased, according to which no injury was found to have been caused either on the right thigh or left shoulder of the deceased. Thus, the conflict between the ocular evidence and the post‑mortem report is evident, in view of which it cannot be said at this stage that reasonable grounds exist which connect the said accused‑petitioners with the commission of offence punishable wit death or transportation for life. For the existence of reasonable ground further inquiry required thereby entitling the petitioners to be released on bail. Apart from the‑ medical evidence referred to above there are certain other facts and circumstances which, in my opinion are also to be taken into account while disposing the bail matter of the accused who applied for bail before the District Criminal Court. It is even in the Police report made B under section 173, Cr. P.C. before the trial Court that in the fight between the parties four accused persons including Muhammad Ashraf, petitioner were also injured. The F.I.R. does not disclose the circumstances under which they had sustained injuries. The accused were not armed with deadly weapons. It is not possible at this stage when the evidence is still to be recorded in the case in the trial Court to ascertain the common intention of the accused in furtherance of which they are alleged to have assaulted the complainant party and caused injuries to its members which resulted in the death of one of them. As stated earlier, Muhammad Ashraf, petitioner had also received certain. injuries in the fight between the parties and thus, it cannot be said at this stage how far his catchin hold of the deceased facilitated the murder of Sardar Khan deceased. I view of the aforesaid facts and circumstances of the case, in my opinion, it is a case where further inquiry is needed before any reasonable ground can be said to exist connecting the accused applying for bail before the trial Court with the commission of any offence punishable with capital punishment and, therefore, this case is fully covered by section 497 (2). Cr. P. C.

For the foregoing reasons, the bail application is accepted while the revision petition against the order of the District Criminal Court granting bail to the non‑petitioners therein, is rejected. Accordingly, Walayat Khan, Muhammad Ishaque and Muhammad Ashraf, accused‑petitioners shall be released forthwith provided they furnish bail bond in the sum of Rs. 50,000 each with one surety in the same amount, to the satisfaction of any Magistrate 1st Class, Mirpur. The District Criminal Court, Mirpur shall be informed of this order which shall intimate the same to the petitioners in the jail.

Bail allowed.

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