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Criminal Miscellaneous No. 978/B of 1986, decided on 15th April, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 148/302/452/149‑‑Bail, grant of‑‑Cross brick‑batting taking place between two parties‑‑Deceased lady happened to be at spot by chance and hit by brick‑bat in chest thy‑own by co‑accused‑‑No motive to kill deceased available‑‑Cause of death not shown‑‑Held, question whether offence was that of murder or grievous injury, called for further inquiry‑‑Bate was, therefore, granted in circumstances.

Sardar Shaukat Ali for Petitioners.

Haider Ali for the State.

This is a petition under section 491/498, Cr.P.C. by Mst. Khurshid Bibi and Mst. Rashidan Bibi, petitioners, for bail in respect of a case instituted against them and three others under section 302/452/148/149; P.P.C. at Police Station Khudian on 27‑2‑1986.

2. The prosecution case in brief is that Nawab Din, complainant, with Sardar Ali, Farmaish Ali and Bakha P.Ws. was sitting in his house. Mahand, co‑accused, and the inmates of his house started hurling abuses at Nawab Din, complainant. Hearing the noise, Mst. Fatima Bibi deceased who happened to live nearby, came into the Ihata. Mahand, co‑accused, shouted a Lalkara that all the inmates of the complainant's house should be caught and killed. He went on to the roof of his house with a gun. The other four accused then came into the complainant's Ihata. Mst. Khurshid Bibi, petitioner, and Farmaish, co‑accused were armed with Sotas, Muhammad Rafiq, co‑accused, was armed with a brick‑bat, and Mst. Rashidan Bibi, petitioner, way empty‑handed. The two petitioners and the two co‑accused then started injuring Mst. Fatima Bibi, deceased, as a result of which she died at the spot. Mahand, co‑accused fired ineffectively from the roof to scare away the intruders. The motive for the occurrence was that in the morning on the same day, Mahand, co‑accused's tractor destroyed the Barshin crop of Hassan, a brother‑in‑law of Nawab Din, complainant, as a result of which there had been a quarrel between the said co‑accused and Muhammad Rafiq and Shafarish, the sons of the said Hassan.

3. I have heard the arguments of the learned counsel for the petitioners and the State and have perused the record. There appears to be no motive for any of the accused to have killed Mst. Fatima Bibi. deceased. According to the F.I.R. it appears that she happened to come into the Ihata of the complainant by chance on hearing the noise and disturbance, and it appears she came within the Umbra of the cross‑brick‑batting. The post‑mortem examination report only reveals four contusions and a bluish red area on different parts of her body. No reason is given showing how and in what manner and through which injury Mst. Fatima Bibi died. Mst. Khurshid Bibi and Mst. Rashidan Bibi, petitioners, and Muhammad Rafiq and Farmaish Ali co‑accused, happen to be the children of Mahand, co‑accused. It is alleged in the F.I.R. that the brick‑bat hurled by Muhammad Rafiq, co‑accused, hit the chest of Mst. Fatima Bibi, deceased after which she died. In these circumstances, the question whether the offence is one of murder or simple/grievous assault, .is one which calls for further inquiry. Ex facie, no circumstances appear to unequivocally show that the petitioners are guilty of the offences presently imputed to them.

4. For the foregoing reasons, this petition is accepted and Mst. Khurshid Bibi and Mst. Rashidan Bibi, petitioners, are released on bail, subject to their furnishing 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, Kasur.

S.A. Petition accepted.

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