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Criminal Bail Application No. 284 of 1978, decided on 15th April, 1978.

---S. 497--Penal Code (XLV of 1860), S.302/34--Bail--Out of four accused, one already granted bail on ground that Lathi produced b} him was not found blood-stained while Lathis produced by remaining three were allegedly stained with blood--Nothing was available to show that whose Lathi blow had caused fatal injury to deceased and whether it was caused in furtherance of common intention of all or was an individual act of assailant--Accused were arrested about nine days after occurrence and recoveries of Lathis made three days after their arrest- Room existing for further inquiry to determine arrest of accused and incriminating nature of offence against each of them--Bail allowed in circumstances.

Muhammad Hayat Junejo for Applicants.

A.S. Shaikh, Asstt. A.-G. for the State.

The applicants, alongwith one Ahmad are facing trial for offences under section 302/34, P.P.C. in the Court of Sessions at Nawabshah. Ahmad was allowed bail, whereas the application of others was rejected.

The case against the applicants, as alleged, is that, on 3-11-1977 at about 1-00 noon, all the four accused armed with Lathis confronted the deceased Muhammad Bux near Naogoth and appellant Photo challenged him as to why he was passing that side, when he was asked, on several occasions not to come there, as they had declared him as "Karol'. Since he had paid no heed, they had surrounded him and all the four accused had dealt Lathi blows on his head and other parts of the body. The deceased received three contusions wounds, one on the right shoulder, 2 and 3 skull beep causing fracture of the skull at two places. The injuries were certified by the doctor to have been caused by a blunt object like a Lathi. The complainant Mahmood, uncle of the deceased was accompanying him. He lodged the F.I.R. at 4-20 p.m. at P.S. Kazi Ahmad. A general. accusation against the applicants was made that all of them had assaulted the deceased with Lathis. No evidence has, yet, been recorded.

The learned counsel has mainly argued that Ahmad has been allowed bail, on the main ground that the Lathi produced by him, was not found stained with blood. Whereas, the remaining three applicant are stated to have produced the Lathis, which were alleged to have been blood-stained. He has argued that the co-accused Ahmad is also involved in the same manner in the F.I.R. as the applicants and the distinction that has been drawn by the learned Judge, gives rise to a presumption that the learned Judge tied not' believed the version of witness, in respect of the part, assigned to him.

He has further argued that the applicants were arrested on 12-11-1977 and the alleged recoveries were made on 15-11-1977. This is a factor which cannot go unnoticed and he emphatically argued that these circumstances of corroborative pieces of evidence, are not free from doubt.

The learned Assistant Advocate-General has opposed the grant of bail and has distinguished the case of Ahmad and has supported the order of grant of bail in his favour. He has contended that the applicants are liable under section 34.

I have perused the F.I.R. in which the complainant, who is an eye-witness, has stated that all the four accused, including Ahmad had dealt Lathi blows to the deceased Muhammad Bux on his head and other parts of his body. Three contusion wounds were found by the doctor, on the person of the deceased. One was on the right shoulder, second was skull deep, on occipital region the third was skull deep near injury No. 2. The skull was fractured at two places. There is nothing to show whose Lathi blow had caused the fatal injury and whether it was caused in furtherance of the common intention of all, or was an individual act of the assailant. The distinguishing feature between the case of co-accused Ahmad, who is allowed bail, and the applicants, is, that blood-stained Lathis were recovered from them. They were arrested about nine days after the occurrence, and the recoveries of Lathis were made three days after their arrest.

Under the circumstances, I find there is room for further inquiry to determine the guilt of the applicants and the incriminating nature of offence against each of them. They shall be released on bail on their furnishing one surety in the sum of Rs.10,000 and P.R. bond in the like amount to the satisfaction of the Court of Sessions at Nawabshah.

M.Y.H. Bail granted.

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