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Criminal Miscellaneous No. 1382/8 of 1986, decided on 5th October, 1986.

---S. 497(5)--Penal Code (XLV of 1860), S. 302/149/148--Bail, cancellation of--Court dismissing first bail application by noting fact that specific injuries had been attributed to accused and did not consider nature-of injuries-- Accused granted bail on second application for the reasons that injuries were simple and not on vital parts of body- Cancellation of bail sought on ground that once bail application was dismissed on a particular ground, it was not open to Court to say that simple nature of injuries attributed to accused provided a fresh ground for bail--Court, held, should consider all aspects of case while deciding first application bail but omission to consider such aspects at earlier occasion would not justify cancellation of bail.

---S. 497(5)--Penal Code (XLV of 1860), S. 302/149/148--Bail, cancellation of--Accused though armed with deadly weapons not causing any fatal injury to deceased--Injuries attributed to accused were Simple in nature and not on vital part--Accused not attempting to inflict or cause any spear injury on any part of body of deceased after he fell down--Accused, held, was entitled to bail in circumstances Petition for cancellation of bail rejected--[ Muhammad Yousaf v. The State 1984 S C M R 134 held not applicable].

Muhammad Yousaf v. The State 1984 S C M R 134 held not applicable.

Muhammad Akbar v. The State 1986 S C M R 489 ref.

Walayat and another v. The State 1984 S C M R 530 rel.

Ch. Muhammad Anwar Bhinder for Petitioner.

Muhammad Akbar Tarar for Respondents Nos. 1 and 2.

Miss Agnis Tabassam for the State.

This is a petition by Sultan Ahmad complainant for cancellation of bail of Manzoor Ahmad and Salehoon respondents Nos. 1 and 2 who are being prosecuted alongwith others in a case under section 302/149/148, P. P. C. arising out of F. I. R. No. 184 dated 8-9-1985, P.S. Malakwal, District Gujrat for the alleged murder of Manzoor Ahmad son of Muhammad.

2. The prosecution case in brief is that on 7-9-1985, at 8-30 p.m. Sultan Ahmad complainant alongwith his maternal-cousin Manzoor Ahmad deceased was proceeding from the village to their Dera on a mare. When they reached near the sugarcane crop in the field of Saee, all of a sudden, Umar Hayat, Muhammad Khan, Muhammad Tufail, Muhammad Afzal, Muhammad Azam armed with sticks, Manzoor Ahmad and Salehoon armed with Barchhis came out of the crop. Salehoon accused caught hold of the bridle of the mare. Umar Hayat accused challenged and simultaneously gave stick blow on the head of Manzoor deceased. Sultan complainant got down from the mare. Muhammad Khan accused gave Sota blow on the head of Manzoor deceased. Muhammad Tufail and Muhammad Azam accused gave stick blows on the right and left upper arms. Manzoor accused (respondent No.1) gave Barchhi blow on the left elbow of Manzoor deceased while Salehoon accused (respondent No.2) gave Barchhi blow which fell on the back of right hand of the deceased. Manzoor Ahmad then gave a Barchhi blow on the left elbow of Manzoor deceased. Thereafter, all the accused allegedly gave more injuries on the back, arms and the legs of the deceased who was lying on the ground. The occurrence was witnessed by Nadir and Sikandar P.Ws. as well. The accused then left the spot with their respective weapons. The motive was stated to be that about 4/5 years earlier, Manzoor deceased had gone abroad. He had been betrothed to Mst. Zubaida, a sister of Umar Hayat accused. This hand was later refused at the instance of Umar Hayat. However, Mst. Zubaida of her own accord went to Manzoor Ahmad deceased. She was restored to her family on the intervention of the respectables. Manzoor Ahmad married another lady. Umar Hayat accused also returned from abroad about two months before this occurrence. It is alleged that he alongwith his co-accused murdered Manzoor Ahmad to take revenge of the insult of the family. The accused were arrested. An application for bail was moved on behalf of some of the accused including respondents 1 and 2 on various grounds including the one that the injuries attributed to the present respondents were of simple nature. The learned Sessions Judge Gujrat dismissed the application of all the accused on 2-2-1986. Thereafter, another application was filed on behalf of those very accused. The learned Sessions Judge vide impugned order dated 24-4-1986 accepted the plea for bail on behalf of Manzoor end Salehoon. The bail of Azam, Tufail and Umar Hayat was refused. It was held by the learned Sessions Judge that the fact that only simple injuries to deceased have been attributed to these two accused, they were entitled to bail.

In support of this petition, it is contended that once bail application was dismissed on a particular ground, it was not open to the learned Sessions Judge to say that the simple nature of injuries attributed to the two accused provided a fresh ground for their bail. In support of this contention, the learned counsel relied upon Muhammad Yousaf v. The State 1984 S C M R 134. On the other hand, it was contended on behalf of the two accused-respondents that the two accused were not attributed fatal injuries to the deceased and only simple injuries on non-vital parts of the body have been attributed to them as such, they were entitled to remain on bail. Reliance has been placed on Muhammad Akbar v. The State 1986 S C M R 489.

3. I have considered the respective contentions on behalf of the parties. It is correct that in the first application for bail dated 9-1-1986, it was specifically pleaded that the injuries attributed to Salehoon etc. accused were of simple nature. The said application was dismissed on 2-2-1986. A perusal of this order would show that the nature of the injuries was not considered by the learned Sessions Judge in this order. He dismissed the application for bail by noting the fact that Salehoon and Manzoor petitioners (respondents herein) have been attributed specific injuries to the deceased. In the second petition for bail, which was partly accepted on 24-4-1986, the learned Sessions Judge, based his order on the fact firstly that the injuries attributed to the accused were of simple nature; and secondly that the said injuries were not on vital parts of the body. The learned Sessions A Judge should have considered all the aspects of the case while deciding the first application for bail on behalf of the accused but in my view, the omission to consider all aspects of the case at the earlier occasion ' would not justify cancellation of bail of the two respondents at this stage. I have gone through the facts of this case. Manzoor and Salehoon accused though armed with deadly weapons like spears did not cause any fatal injury to Manzoor deceased. The injuries attributed to these accused were of simple nature. It is alleged in the F.I.R. that all the accused caused injuries to Manzoor deceased when he was lying on the ground. It appears that no injury by sharp-edged weapon like spear B was caused to Manzoor deceased at that time. On an overall assessment of the fact, I am of the view that firstly, the injuries to the deceased attributed to Manzoor and Salehoon accused were not on vital parts of the body; secondly, the injuries attributed to these accused were of simple nature; and thirdly, these two accused did not attempt to inflict or cause, any spear injury on any part of the body of deceased after he fell down.

I have gone through the judgment in Muhammad Yousaf v. The State. Id this case, Muhammad Yousaf had twice applied for his bail but did not succeed before the learned Additional Sessions Judge, Faisalabad. He then filed a third application for his bail which was granted by learned Sessions Judge although the learned Additional Session Judge who had twice rejected his petition was available at that station. The High Court on an application by the complainant, cancelled the bail of Muhammad Yousaf disapproving the disposal of application by the learned Sessions Judge though at that time the learned Additional Session Judge was available at Faisalabad and also on merits of the case. The learned Judges of the Supreme Court approved the observations by a learned Judge of the High Court and upheld the order of cancellation of bail. In my view, this judgment is not applicable to facts of this case because both the petitions for bail on behalf of Manzoor and Salehoon accused were disposed of by the same learned Judge. I have, as stated above, considered the merits of the case as well and am of the view that the accused having been attributed only simple injuries on non-vital part of the body of the deceased were C entitled to bail in the facts and circumstances of this case. Reliance for this view is placed on Walayat and another v. The State 1984 SCMR 530. In Walayat's case, the petitioners were allowed bail because their co-accused was already granted bail on ground of having given hatchet, blow causing simple injury to the deceased. In Muhammad Akbar's case, A relied upon by the learned counsel for the respondents, Muhammad Akbar had caused injuries to the deceased on legs whereas his co-accused Shah Sawar had caused injuries to the witnesses and not to the deceased and as such, they were allowed bail.

4. In view of the above discussion, I am not inclined to cancel the bail of Manzoor and Salehoon accused at this stage. This petition is accordingly dismissed.

M.A.K. Petition dismissed.

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