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Criminal Miscellaneous No. 831‑B of 1985, decided on 21st April, 1985.

‑‑‑Ss. 497 & 498‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail, grant of‑‑Investigating Officer holding deceased and complainant as aggressors‑‑Incident taking place near house of accused persons‑ Deceased suffering only one fatal injury which was not attributed to accused /petitioners but in fact attributed to co‑accused‑‑All other injuries on person of deceased and complainant found to be simple blunt weapon injuries‑‑Question whether accused party was motivated to murder deceased or to merely give a good beating to him, having to be determined by trial Court after recording evidence‑‑Question whether all accused were liable under S. 302/34, P.P.C. or 325/34, P.P.C. also to be determined by trial Court‑‑Bail granted in circumstances.

Syed Ehsan Qadir Shah with, Ehtesham Qadir for Petitioners.

Nasim Iqbal for the State.

This is a petition under section 497/498, Cr. P. C. by Muhammad Bashir and Allah Yar, petitioners, for bail in respect of a case instituted against them and two others under section 302/34, P.P.C. at Police Station Kot Momen on 28‑10‑1984.

2. The prosecution case in brief is that on 28‑10‑1984 at about 1 p.m. when Muhammad Ali, deceased, and Muhammad Afzal complainant were taking a tyre of their Rehra to the Bazar for having the puncture done up, they were assaulted by Muhammad Bashir and Allah Yar, petitioners, and Ameer and Manzoor, co‑accused, on the way, just near their house. All the four accused allegedly were armed with Lathis. Ameer, co‑accused, raised a Lalkara that they had come and would take revenge. Ameer, co‑accused, then inflicted a Lathi blow on the back of the neck of Muhammad Ali, deceased‑, followed by Manzoor, co‑accused, who inflicted a Lathi blow on the back of his skull, further followed by Muhammad Bashir, petitioner, who inflicted a Lathi blow near his right eye and lastly followed by Allah Yar, petitioner, who inflicted two Lathi blows on the back of the chest of the deceased. When Muhammad Afzal complainant tried to intervene, all the four accused inflicted one blow each on various parts of his body.

The motive for the occurrence was that Ameer, co‑accused, had abducted Mst. Sakina, the wife of Sultan Ahmad P.W. with whom he was carrying on illegally. A case under the Offence of Zina (Hudood) Ordinance, 1979, had been instituted against Ameer, co‑accused, arid the said Mst. Sakina Bibi, which had ultimately resulted in acquittal of the said two persons. Muhammad Ali, deceased, was persuing this case on behalf of his brother Sultan Ahmad P.W. Ameer, co‑accused, wanted to get Talaq for Mst. Sakina, but due to the opposition of Muhammad Ali, deceased, he was not successful. Accordingly, all the four accused killed Muhammad Ali, deceased.

4. I have heard the arguments of the learned counsel for the petitioners and the State and have perused the record. On behalf of the petitioners .it is submitted that the D.S.P. who conducted the investigation, had held that Muhammad Ali, deceased, and Muhammad Afzal P.W. were the aggressors and that, at best, even assuming that the incident had taken place, the intention of the accused could not be placed any higher than one for committing grievous hurt and that Muhammad Bashir and Allah Yar, petitioners, having only inflicted simple injuries on the deceased, they are entitled to be released on bail. On behalf of the State it is' submitted that the statements of Muhammad Bashir, petitioner, and Ameer, co‑accused recorded by the police on the date of arrest, show that they admitted injurying Muhammad Ali, deceased, in which statement they alleged that Allah Yar, petitioner, and Manzoor, co‑accused, were not present. As regards the opinion expressed by the D.S.P., Bhalwal, it is submitted that it was only on conjecture and not on the basis of any statement of witnesses recorded in that behalf. What stands out prominently is that the incident occurred a few Karams away from the house of Muhammad Bashir, petitioner, and Ameer and Manzoor, co‑accused. There is only one fatal injury on the person of Muhammad Ali, deceased. All the other injuries on Muhammad Ali, deceased, and Muhammad Afzal complainant are simple blunt weapon injuries. Since Mst. Sakina, the wife of Sultan Ahmad P.W. was living with Ameer, co‑accused, the question whether the accused party was motivated to murder Muhammad Ali, deceased, or to merely give a good beating to him, is a question which will have to be B answered by the trial Court, after proper evidence is recorded. In the light of this answer, it will be determined whether all the accused are liable under section 302/34, P.P.C. or 325/34, P.P.C. Muhammad Bashir and Allah Yar, petitioners, are riot alleged to have given the fatal injury to Muhammad Ali, deceased. In these circumstances, they are entitled to be released on bail.

5. For the foregoing reasons, this petition is accepted and Muhammad Bashir and Allah Yar, petitioners, are released on bail, subject to furnishing the security in the sum of Rupees thirty thousand (Rs.30,000) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Sargodha.

H.A.K. Bail granted.

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