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Criminal Miscellaneous No.744‑B of 1981, decided on 28th September, 1981.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail‑‑Accused armed with Dang causing no injury to deceased‑‑Only role attributed to accused being that he issued a threat to complainant and his companions that they should not come near‑‑Initial Lalkara after which attack launched also not attributed to accused ‑‑Co‑accused who raised Lalkara already admitted to bail by Sessions Judge‑‑Case of accused one of further enquiry‑‑Bail granted.

Sahibzada Farooq All Khan for Petitioner.

Akhtar Masood for the State.

The petitioner is one of the accused in case F.I.R. No.29, dated 20‑6‑1981 registered under section 302/34, P.P.C. at Police Station Kala, district Dera Ghazi Khan. He has applied for bail as his prayer for bail was rejected by the learned Sessions Judge, Dera Ghazi Khan, on 30‑8‑1981.

2. The allegations against the petitioner are that about 3/4 years ago his brother was injured by the father of the deceased. The petitioner nourished a grudge against the complainant's father on account of the above incident. On 20‑6‑1981 at about Deegarwela Ghulam Abbas deceased had gone to the tube‑well of Ahmad Bakhsh to drink water as he was feeling thirsty. His brother Rab Nawaz complainant was grazing his sheep alongwith Muhammad Bakhsh son of Ghulam Muhammad and Nazir near the aforementioned tube‑well. Ghulam Abbas deceased was suddenly surprised by the petitioner and his co‑accused Ghulam Rasul and Abdul Ghafoor when they came out of the room where the tube‑well was installed. Abdul Ghafoor raised a Lalkara that Ghulam Abbas who was their enemy's son should not be spared. Ghulam Rasul had a .12 bore gun with him. He fired two shots which hit Ghulam Abbas on his right arm and back. The petitioner who was armed with a Dang threatened the complainant and the persons accompanying him that they would also be dealt with in the same fashion if they tried to intervene.

3. It has been contended on behalf of the petitioner that he has been falsely implicated in the case due to enmity. The incident in which petitioner's brother was injured by the father of the deceased, had taken place about 8/9 years ago and in respect of that incident a case under section 307, P.P.C. was also registered against the complainant's father. The story of motive narrated in the F.I.R stands falsified by the very fact that the petitioner had taken no active part in committing the murder of Ghulam Abbas. No injury was caused by him to the deceased though he was armed with a Dang. It is further contended that the principal accused in the case namely Ghulam Rasul is the first cousin of Ghulam Abbas deceased. It is inconceivable that he would have joined the petitioner in committing the murder of his own first cousin.

4. Learned counsel for the State has opposed the petitioner's prayer for bail on the main ground that it was on account of the grudge which he nursed against the father of the deceased that he had planned the murder of the deceased. Although he did not cause any injury to the deceased, yet he was equally liable for the murder of the deceased which was committed by Ghulam Rasul co‑accused in furtherance of the common intention of all.

5. I have considered the arguments of the parties' counsel. It is evident from the facts of the case as narrated by Rab Nawaz complainant in the F.I.R. that his brother Ghulam Abbas had died as a result of two shots fired by Ghulam Rasul. The petitioner who was armed with a Dang did not cause any injury to the deceased. The only role attributed to him is that he had threatened the complainant and his companions that they should not come near otherwise they would also be dealt with in the same fashion as had been done in the case of Ghulam Abbas. The initial lalkara after which the attack was launched is also not attributed to the petitioner. Abdul Ghafoor who had raised the lalkara has already been admitted to bail by the learned Additional Sessions Judge vide his order dated 30‑7‑1981. At this stage, it is not proper to express any opinion as to whether the petitioner nourished any grudge against the deceased on account of some incident which had taken place about 8/9 years ago and whether it could have led him to plan the murder of the deceased as this matter would be considered by the trial Judge in the light of the evidence which the prosecution would produce before him. Ghulam Rasul, the principal accused who has not been arrested so far by the police is stated to be the first cousin of Ghulam Abbas deceased. It is also for consideration whether he would have joined the petitioner in committing the murder of his first cousin on account of some old grudge which the petitioner nourished against the father of the deceased.

6. Having regard to the aforementioned circumstances, it can be said that petitioner's case is covered by the provisions of subsection (2) of section 497, Cr.P.C., inasmuch as further inquiry is necessary to determine his guilt in the case. Petitioner's prayer for bail is accordingly allowed. He shall be released on his furnishing security in the sum of Rs.20,000 (Rupees twenty thousand) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Dera Ghazi Khan.

M. Y. H. Bail granted.

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