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Criminal Miscellaneous Nos. 541/B and 542/B of 1986, decided on 2^nd March, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Besides causing an injury on head of deceased, petitioner also taking part in general beating given to him by other accused person‑‑Bail declined in circumstances.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑No specific injury to deceased attributed to petitioner Held: A case of further inquiry, in circumstances‑‑Bail allowed.

Qazi Muhammad Salim for Petitioner.

Salim Shad for the State.

Date of hearing: 2nd March, 1986.

This order will dispose of two bail petitions (Criminal Miscellaneous 541‑B of 1986 and 542‑B of 1986) filed by Muhammad Aslam and Saifullah, petitioners, for bail in respect of a case instituted against them and two others under section 302/307/324/148/149, P.P.C. at Police Station Shorkot, District Jhang, on 23‑5‑1985.

2. The prosecution case in brief is that Haji Muhammad Sharif, co‑accused, armed with a gun, Muhammad Rafiq, co‑accused and Saifullah, petitioner, both armed with Kassis, and Muhammad Nawaz, co‑accused, and Muhammad Aslam, petitioner, both armed with hatchets, ambushed Noor Muhammad, deceased, and his party whilst they were returning home at about 8.00 p.m. on 22‑5‑1985. According to the F.I.R. Haji Muhammad Sharif, co‑accused, first uttered a Lalkara that they should be killed, whereupon Muhammad Rafiq, co‑accused gave a Kassi blow with the blunt side of his Kassi on the top of the head of Noor Muhammad deceased. Saifullah, petitioner, then inflicted a Kasai blow on the head of the deceased. Muhammad Nawaz, co‑accused inflicted hatchet blow with his blunt side on the left side of Zulfiqar P.W., which injured his forearm. Saifullah, petitioner, then inflicted a Kasai blow on the forehead of Muhammad Yar, complainant P.W. Muhammad Aslam petitioner, then inflicted a hatchet blow on the complainant. The complainant fell down whereafter all the four accused, who were armed with Kassis and hatchets, inflicted injuries on him on his chest and left thigh. They then inflicted injuries on Noor Muhammad, deceased, on his head, cheek and left eye. The motive for the occurrence was that the complainant party had complained to the Zilladar about the illegal water channel which Haji Muhammad Sharif, co‑accused, and others had dug, by breaking the road, in order to take water from square No. 29 to their lands in Squares Nos. 278 and 25.

3. On behalf of the petitioners it is submitted that during investigation Haji Muhammad Sharif, Muhammad Rafiq and Muhammad Nawaz, co‑accused, were found not to have participated in the occurrence, with the result that they were granted bail by the High court, which renders the F.I.R. suspect qua the present petitioners. It is further submitted that Muhammad Mochi P.W, who Wan eye‑witness, and Bashir Ahmad, who is the son of Noor Muhammad, deceased, have both sworn affidavits that the occurrence did not take place, as alleged. It is further contended that the F.I.R. was lodged after twenty‑six hours of the occurrence, for which there is no plausible explanation.

4. I have heard the arguments of the learned counsel for the petitioners and the State and have also perused the police file. The affidavit of Bashir Ahmad, son of the deceased, pardoning the petitioners cannot be taken into consideration at this stage, in the absence of affidavits of the other legal heirs of the deceased also pardoning and forgiving the petitioners. The affidavit of Muhammad Mochi deposing to his not having witnessed the occurrence is presently of no avail, as there are the statements of the other eye‑witnesses, who saw the occurrence and have not resiled from their deposition. Saifullah, petitioner, is alleged to have inflicted an injury on the head of Noor Muhammad deceased. He is also alleged to have inflicted injuries on the deceased in the general beating given to him with the other three accused. He is not, therefore, entitled to be released on bail, Muhammad Aslam, petitioner, is alleged to have specifically inflicted an injury on the head of Muhammad Yar, complainant, but there is no such injury. He is further alleged to have inflicted injury on the said complainant in the general beating given to him with the other three co‑accused. Since no specific injury is attributed to have been given by him to the deceased, his case calls for further inquiry.

5. For the foregoing reasons, bail petition (Criminal Miscellaneous 541‑B of 1986) is accepted and Muhammad Aslam, petitioner, is released on bail, subject to his furnishing security in the sum of Rupees thirty thousand (Rs.30,000) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Jhang. The bail petition (Criminal Miscellaneous 542‑B of 1986) filed by Saifullah, petitioner, for bail, is dismissed.

S. G. D. Order accordingly.

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