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Criminal Miscellaneous No. 589-B of 1983, decided on 18th May, 1983.

--S. 497-Penal Code (XLV of 1860), S. 302/34-Bail-Accused empty-handed-Sufficient overt act attributed to accused but not causing any injury to deceased-Question whether accused in reality did protect deceased when there was apprehension that he might receive pellet wounds in process requiring further inquiry-Accused allowed bail in circumstances.

Kh. Sultan Ahmad and Ch. Mahboob Ahmad for Petitioners.

Majeed Sindhu for the State.

Sh. Farooq for the Complainant.

This is an application for bail on behalf of Zafar petitioner in a case under section 302/34, P. P. C. registered at P. S. Makhdoom Rashid, vide FIR No. 190, dated 1-8-1983.

2. The prosecution case is that the petitioner and 2 others in furtherance of their common intention caused the death of Muhammad Afzal on 1-8-1982 in the area of village Kotheywala of P. S. Makhdoom Rashid.

3. As for the petitioner it has been alleged that at that time of occurrence he was accompanying his co-accused Shahid and Muhammad Amin; that he gave signal to the deceased to stop his motor-cycle; that he abused the deceased, that he followed the deceased when he ran to save his life; that he actually caught hold of the deceased to enable his co. accused Shahid to fire at the deceased with pistol.

4. The learned counsel for the petitioner submits that the petitioner was empty-handed at the time of occurrence; that he did not cause any injury to the deceased and the part attributed to him requires further enquiry.

As against this, the learned counsel for the State assisted by the learned counsel for the complainant has seriously opposed this application by submitting that the provisions of section 34, P. P. C. are very much attracted to the case of the petitioner as more than sufficient overt act has been attributed to him inasmuch as be gave signal to the deceased to stop, that he alongwith others raised Lalkara; that he abused the deceased, that be followed the deceased and overtook him and that he actually caught bold of the deceased by his arms when his co-accused namely, Shahid fired fatal shot at the deceased. The learned counsel for the State has relied on an unreported judgment in Cr. M. No. 76/B/83 titled Muhammad Afzal and another v. The State' to contend that I had refused bail in an identical case.

5. After hearing the learned counsel and going through the record which is available before me I find:

(i) that the petitioner was admittedly empty-handed;

(ii) that no doubt, sufficient overt act has been attributed to him but the fact remains there that he did not cause any injury to the deceased;

(iii) that the question whether after having received fire-arm injury No. 2 on his head (as the prosecution case is), the deceased could run for 26 Karams and further, whether when one person in the circumstance could have easily caused the fatal injury, the peti tioner in reality did secure the deceased particularly when there was an apprehension, that he might receive pellet wounds in the Process, do require serious consideration.

As for my order refusing bail in Cr. M. No. 79/B/83, referred to by the learned counsel for the State, I have examined the same with care. That case is distinguishable. In that case, the firm-arm was discharged in actual contact with the body of the deceased and that is not the position in the case in hand.

Without making any expression of the opinion, lest it may prejudice the merits of the case, I am of the opinion that the question of the guilt of 8 the petitioner, in the circumstances of the case requires further enquiry. He is, therefore, allowed bail in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of A. C/Duty Magistrate, Multan.

S. G. D. Bail granted.

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