Find a Lawyer

Criminal Miscellaneous No. 448/13 of 1985, decided on 16th March, 1985.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302./148/149/109‑‑Cancellation of bail‑‑Medical evidence contradicting part assigned to one accused‑ ‑Another accused only attributed part of abetment‑‑Other accused allegedly firing ineffective shots which were fired after deceased had been hit by fire and fallen down‑‑Complainant party not found to be in possession of disputed land as lease‑holder as alleged in F.I.R.‑‑Sale deed in favour of accused party regarding land over which dispute took place found to be prior in time to lease deed in favour of complainant party‑‑Discretion exercised by trial Court in granting bail not found to be improper‑‑Cancellation of bail refused in circumstances.

----S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/148/1491109‑‑Cancellation of bail‑ ‑Post‑mortem report showing injury on leg of deceased attributed to accused found to be exit wound‑‑Opinion of doctor that said injury was also cause of death alongwith other injury, held, did not mean that same was not exit wound‑‑Opinion of doctor at bail stage, had to be given its own weight‑‑Cancellation of bail declined.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/148/149/109‑‑Cancellation of bail‑‑Trial Court, entertaining second bail application after rejecting first one‑‑Certain points not raised at time of rejection of earlier bail application‑‑Such points raised and considered at time of granting bail to co‑accused‑‑New points coupled with fact of co‑accused having been granted bail on similar grounds were considered by trial Court at time of granting bail to accused‑‑No petition for cancellation of bail moved against said co,‑accused‑‑Plea that second bail petition should not have been entertained repelled, in circumstances.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/148/149/109 Cancellation of bail‑‑Trial Court passing order after taking into account all aspects of case‑‑Discretion exercised by trial Court in granting bail not found to be improper‑‑Ground required for cancellation of bail, held, not available in circumstances of case.

Nazar Muhammad v. The State and 6 others 1980 P Cr. L J 1026 ref.

Ch. Qamar‑ud‑Din Khan Mao for Petitioner.

Ch. Muhammad Hussain for Respondents.

Muhammad Shahnawaz Khan for the State.

Date of hearing: 16th March, 1985.

The respondents were granted bail by' learned Additional Sessions Judge, Okara vide order dated 2‑2‑1985, in case F.I.R. No. 230, Police Station (Sadar) Okara, registered on the statement of Khan son of Ameer on 29‑8‑1984 at 8‑30 p.m. for an occurrence which had taken place on the same day at 7‑00 a.m. in the fields. Petitioner seeks cancellation of bail of the respondents.

2. According to the complainant, Muhammad Aslam (deceased), his son, had taken some land on lease from Zulfiqar against a sum of Rs.25,000 on an undertaking that the possession of the land shall be taken back by the owner on return of the amount. It is stated that lease‑deed in this connection was recorded on 15‑8‑1984. Thereafter, Zulfiqar sold the land to Sakhawat alias Sakhi son of Pehlwan respondent, who demanded the possession from the complainant and his son. On their refusal, Sakhawat insisted that since he had purchased the land, he should be given the possession and that for the money paid by them to Zulfiqar, they should approach him. According to the F.I.R. Zulfiqar refused to return the money and sided with Sakhawat and his co‑accused. It is further stated in the F.I.R. that on the day of occurrence except Zulfiqar all other respondents armed with guns accompanied by Amir Ali armed with a pistol and Sakhawat Ali armed with a rifle came to the spot and after raising a Lalkara that they will take the possession today, started firing. The shot fired by Sakhawat Ali is stated to have hit on the right thigh of Muhammad Aslam and the shot fired by Humayun is stated to have hit on right leg of Muhammad Aslam (deceased). On the noise raised by the complainant and other witnesses, the co‑accused of Humayun and Sakhawat ran away from the spot while firing.

3. Learned Additional Sessions Judge granted bail to Zulfiqar respondent, keeping in view the fact, that only, allegation of abetment was levelled against him and he granted bail to other respondents considering the fact that Bashir, Allah Ditta and Zakir Shah were only alleged to have fired ineffective shots, while the medical evidence contradicted the part assigned to Humayun. In that, the doctor had opined that injury on right leg was exit wound.

4. Learned counsel for the petitioner contended that except Zulfiqar all the respondents had come to the place of occurrence after having formed an unlawful assembly and each of them was liable for the common intention of having committed the offence under section 302, P. P. C. that the opinion of the doctor that injury on the right leg was exit wound, should not be given any weight as the doctor while giving opinion about the cause of death had stated that it was the result of both the injuries on the thigh and leg; that since learned Additional Sessions Judge had once rejected the bail on an earlier date, he should not have entertained the second petition; that the authorities cited in his judgment are not applicable to the facts of this case and that the weapons of offence have also been recovered from the respondents except Zulfiqar.

5. Learned counsel for the State has supported the petition for cancellation of bail.

6. Learned counsel for the respondents contended that the case of Zulfiqar respondent stands on a different footing, in that there is no allegation that he was present at the time of occurrence; that even according to the F.I.R. the shots fired by the respondents other than Humayun, had not hit anybody and that the allegation against Humayun of having hit the deceased on the right leg stands contradicted by the post‑mortem report. He further contended that Sakhawat who is not the respondent in this case, had purchased the land in dispute on 1‑8‑1984 by a registered sale‑deed while even according to the F.I.R. the complainant‑party had obtained the land on lease on 15‑8‑1984, which means that on that day the former owner had no authority to give the land on lease. Learned counsel has produced Khasra Girdawari of the land in dispute to contend that the Khasra Girdawari does not show that the respondents were ever in possession of the land in dispute. Copy of the Khasra Girdawari has. been placed on the record.

Lastly, learned counsel for the respondents has vehemently contended that the principles of cancellation of bail are not available in this case. In this connection he has cited Nazar Muhammad v. The State and 6 others 1980 P Cr. L J 1026.

7. I have considered the contentions raised by learned counsel for the parties, have gone through the F.I.R. and have also perused the A post‑mortem report. There is no denying the fact that the doctor has positively opined about the injury on the leg, to be an exit wound. The fact that he has opined that this injury 'was also the cause of death alongwith the injury on the thigh, does not mean that this was not an exit wound. In any case if the prosecution feels that the opinion has not been given correctly, then they will have to go in, for some other course and will have to wait till the trial when the doctor appears as a witness. For the present all that the doctor has expressed in his report, will have to be given its own weight. The shots fired by other respondents i.e. Bashir, Allah Ditta and Zakir Shah had not only proved ineffective but the allegation against them is that they had fired after the deceased had been hit and had fallen down. There is no allegation in the F.I.R. that they had aimed their weapons towards the deceased or the P.Ws.

Apart from the fact that the Khasra Girdawari does not contain the names of the deceased or the complainant as persons in possession of the land as lease‑holders, the other important fact is that even according to the F.I.R. the lease was obtained by Muhammad Aslam (deceased) from Sikhawat, 15 days after he had obtained the land from Zulfiqar respondent.

The contention of learned counsel for the petitioner that the Additional Sessions Judge should not have entertained the second petition, has not weighed with me much, keeping in view the fact that learned Additional Sessions Judge has noted in his judgment that certain points were not raised before him when the earlier petition was rejected and that those points were raised and considered in the petition filed by Amir Ali, a co‑accused of the respondents who was granted bail, and while granting bail to the respondents the new facts coupled with the fact of Amir Ali having been granted bail on similar grounds; was also considered. No petition for cancellation of bail has been filed against Amir Ali.

I also find force in the contention of learned counsel for the respondents that the grounds required for cancellation of bail are not available in this case, as the order of learned Additional Sessions F Judge cannot be termed as having been passed without taking into account all aspects of the case nor it can be stated that the discretion has not been exercised properly.

For all the reasons mentioned above, I do not find any force in this petition. The same is dismissed.

H.A.K. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.