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Bail Application No. 1186 of 1984, decided on 12th December, 1984.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Petitioner attributed no overt act except that of catching hold of deceased in a sudden fight while co‑accused causing knife injury to deceased‑‑Case of petitioner, held, required further inquiry, in circumstances‑‑Bail allowed.

Muhammad Asghar Khan for Applicant.

Muhammad Ibrahim Memon, A.‑A. G. for the State.

The applicant Akbar Khan alongwith his brothers namely Abdul Ghaffar and Muhammad Alam Khan have been charged with offences under section 302/34, P.P.C. for having committed murder of their brother Abdul Hameed Khan. Akbar Khan and Abdul Ghaffar Khan were arrested, while Muhammad Alam Khan is reported to be absconding Akbar Khan had applied for bail to the trial Court i.e. Vth Additional Sessions Judge, Karachi, but his bail application was rejected. Akbar Khan has now filed this bail application.

According the F.I.R. lodged by Bakht Buland son of deceased Abdul Hameed Khan, applicant Akbar Khan and the absconding accused Muhammad Alam Khan, had in a sudden fight, caught hold of Abdul Hameed Khan deceased, while co‑accused Abdul Ghaffar Khan had caused injuries to him with knife which proved fatal.

It has been argued by Mr. Muhammad Asghar Khan that no overt act has been attributed to applicant Akbar Khan except that he had abused and caught hold of Abdul Hameed Khan in a sudden fight. Fatal injuries have been attributed to co‑accused Abdul Ghaffar Khan, hence common intention cannot be inferred. In support of this argument he has relied on two decisions of Supreme Court namely, Muhammad Akbar and others v. The State 1978 S C M R 7 and Basharat Hussain v. Ghulam Hussain 1978 S C M R 375.

In the first case the petitioners were alleged to have caused simple injuries to complainant, while the other co‑accused were attributed fatal injuries to the deceased in a case under sections 302, 148 and 149, P.P.C. It was held that the case of the petitioners to whom only simple injuries were attributed, was distinguishable from that of other accused who had inflicted fatal injuries to the deceased, therefore, the petitioners were held entitled to bail.

In the second case the facts were that respondent Ghulam Hussain had caught hold of the deceased, while his son the co‑accused had caused fatal injuries to the deceased. It was alleged that Ghulam Hussain had facilitated murder of the deceased. The High Court held that the case of Ghulam Hussain, who had simply caught hold of the deceased, was distinguishable from the case of the co‑accused and that it required further inquiry and, therefore, he was entitled to bail. The order of the High Court was challenged by Basharat Hussain before the Supreme Court. The plea of Basharat Hussain was rejected by the Supreme Court and it was held that the High Court was justified in taking the view that the case of Ghulam Hussain required further inquiry.

The above two decisions are on all fours so far as the allegations against applicant Akbar Khan are concerned. He had in a sudden fight only caught hold of the deceased Abdul Hameed Khan, who was his real brother. During this fight co‑accused Abdul Ghaffar Khan had caused knife injury to Abdul Hameed Khan deceased. Hence in view of A the decisions quoted above, the case of Akbar Khan requires further inquiry.

Application is allowed. The applicant shall be released on furnishing surety in the amount of Rs. 20,000 and P.R. in like amount to the satisfaction of the trial Court.

S.G.D. Bail allowed.

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