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Criminal Miscellaneous No. 2764‑B of 1985, decided on 17^th November, 1985.

----S. 498‑Penal Code (XLV of 1860), S. 302‑Bail‑‑Allegations in F. I. R. and statements of witnesses when compared with post mortem reports. indicating that weapon used by accused, in all probability, hit no one‑Ordinarily such fact per se might be a ground for bail after arrest‑Circumstances arising out of prosecu tion case itself not fitting in with accusation of indiscriminate firing by all accused persons‑Besides accused two other co‑accused were also said to be armed with single barrel .12 bore guns but no .12 bore crime empty was recovered from the spot‑Role of general firing by all accused introduced with a view to rope to a large number of persons‑Accused allowed bail before arrest in circumstances.

Ch. Nawabud Dirt Mehmood for Petitioner.

Dil Muhammad Tarar for the State.

Zafarullah Khan, petitioner, has come up for bail before arrest in the case registered against him and six others for the murder of Msr. Naziran and Muhammad Irshad and for having murderously assaulted Muhammad Aslam. The case was registered against them at Police Station Qila Dedar Singh on 23‑6‑1985.

2. It is alleged in the F. I. R. that on account of elections, the relations between the parties became strained so much so that their women quarrelled and abused each other in the morning on 23‑6‑1985 but the matter was hushed up. The same day at 2‑30 p.m. informant's wife was proceeding from her house to her Haveli and she was fired at by Sanaullah accused with a single barrel .12 bore gun hitting her on her neck, chest and right hand. She fell dead at the spot. Her son Muhammad Aslam tried to intervene and was fired at by Umer Hayat accused hitting him on His left arm. Thereafter, all accused indiscriminately fired as a result of which Muhammad Irshad died at the spot

3. Arguing petitioner's case for bail before arrest, learned counsel for the petitioner raised a plea of alibi on behalf of Zafarullah explaining that he was an employee in the Agricultural Department and was on duty at a distance of 15 miles froth the place of occurrence in his office and had been marked present for the day. Copy of the extract from the Register of Attendance is also attached with this petition. It was next contended that allegations in the F. I. R. read with the post‑mortem reports support to petitioner's plea i.e. he was not present at the place of occurrence.

4. I have considered the submissions. No doubt, in the F. I. R. the first shot fired at Mst. Naziran which felled her was ascribed to Sanaullah accused. The doctor did not find any injury on her hand as alleged in the F. I. R. She may have touched her injury on the neck and chest which smeared her hand with blood and the informant may have been under the impression that her hand was also injured. The solitary shot that killed Irshad is a bullet injury in the head. The bullet has also been extracted by the doctor. Shukerullah accused was alleged to be armed with a revolver. No doubt, the allegations in the F. I. R. and the statements of the witnesses when compared with the post‑mortem reports do indicate that the weapon used by the petitioner, in all A probability, hit no one. Ordinarily this per se may be a ground for bail after arrest. However, learned counsel for the petitioner made a further distinction and argued that the petitioner was in fact not present at the place of occurrence, and in support of this submission, he contended that in the F. I. R. after having ascribed specific roles to some of the accused, the role of general firing by all accused has been introduced with a view to rope in a large number of persons. But there were other circumstances arising out of the prosecution case itself which did not fit in with the accusation of indiscriminate firing by all accused because besides, the petitioner, Umer Hayat and Sanaullah were also said to be armed with single barrel .12 bore guns, but no .12 bore crime empty was recovered from the spot. Had the petitioner taken part in the firing, he would have reloaded his gun and there would be a crime empty at the spot. I have considered this aspect of the case. The investigating officer who is present with the record has stated that no crime empty was recovered from the place of occurrence. This admission supported the submission of the learned counsel. I, therefore, admit this petition. The petitioner has already furnished bail bonds in the sum of Rs. 5,000 with one surety in the like amount to the satisfaction of A. C/Duty Magistrate, Gujranwala. In my view, fresh bail bonds in the sum of Rs. 25,000 (Rupees twenty‑five thousand) with two sureties each in the like amount should be submitted to the satisfaction of the aforementioned officers by the 30th of November, 1985. The interim bail is, however, extended till then.

M. A. K. Bail allowed.

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