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Criminal Appeal No. 73 of 1985 in Criminal Petitions for Leave to Appeal Nos. 88‑R and 89‑R of 1985, decided on 28th October, 1985.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, dated 7‑7‑1985, in Criminal Miscellaneous No. 235‑B of 1985).

‑‑‑S. 497‑‑Bail‑‑Prosecution case not disclosing that accused party was" aggressor‑‑Accused not attributed fatal injuries to deceased‑‑Guilt of accused persons and their criminal liability a matter of further enquiry particularly when serious injuries were sustained by some of accused, persons‑‑First Information Report showing that one of accused inflicted injuries to deceased on leg while other accused was alleged to have caused injuries to witnesses and not to deceased‑‑Bail granted.

‑‑‑S. 497‑‑Bail‑‑Accused allegedly opened attack alongwith other co‑accused and inflicted fatal injuries to deceased‑‑Accused, held, not entitled to bail.

Raja Muhammad Anwar, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Ch. Ghulam Ahmad, Advocate Supreme Court with Rao Muhammad Yousaf Khan, Advocate‑on‑Record for the State.

Kh. Muhammad Yousaf Saraf, Advocate Supreme Court for the Complainant.

Kh. M. Yousaf Saraf, Advocate Supreme Court for Petitioner.

Raja Muhammad Anwar, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.l.

Date of hearing: 28th October, 1985.

‑‑Petition No. 88‑R of 1985 and Petition No. 89‑R of 1985 arise out of the order, dated 7th July, 1985, by a learned Single Judge of the Lahore High Court and are accordingly being disposed of by this common judgment. The first mentioned petition is by Muhammad Akbar, Muhammad Afzal and Shah Sawar who have been refused bail whereas the other petition is by complainant Abdul Qadeer who is aggrieved by the order of the High Court granting bail to respondents Jamshed, Muhammad Zafar, Bashir, Hasnat, Ali Asghar, Abdul Razzaq, Tariq Mahmood and Muhammad Malik.

2. The petitioners in the first mentioned petition and the respondents in the second petition were all arrested by the police in pursuance of F.I.R. No. 12, dated 1st March, 1985, registered at Police Station, Dhumman, in connection with the death of Fazal Hussain son of Abbas Ali. In all 15 accused persons were arrested, out of whom 11 accused prayed for bail. The High Court granted bail to 8 out of them who are respondents in Petition No. 89‑R of 1985, whereas the bail plea of petitioners in Petition No. 88‑R of 1985 was refused. The occurrence is said to have taken place near the hotel of Fazal Hussain deceased situated in village Dhoda, within the jurisdiction of Police Station Dhumman, Tehsil and District Chakwal. In the occurrence as many as 4 accused persons were also injured whose names are Muhammad Malik, Muhammad Ishaq, Muhammad Latif and Bustan Khan. On the complainant side besides the deceased, six other persons including the complainant were injured. The weapons used accused according to the prosecution were Dangs.

3. During the investigation the local police found respondents 1 to 7 in Petition No. 89‑R of 1985 to be innocent. Similar opinion was expressed by the D.S.P., Chakwal, during the further investigation conducted by him. However, another D.S.P. namely Sh. Muhammad Amin, disagreed with the opinion of the above said police officer and, therefore, all the accused persons were sent up for trial. In view of this conflict of opinion among the Investigating Officers, the High Court considered that respondents Jamshed, Muhammad Zaffar, Bashir, Hasnat, Ali Asghar, Abdul Razzaq and Tariq Mahmood were entitled to bail because the matter of their guilt required further inquiry. He also found respondent Muhammad Malik to be entitled to bail oh the ground of old age, being a man of 80 years of age and also having received injuries in the same transaction. However, as regards petitioners Muhammad Akbar, Muhammad Afzal and Shah Sawar the learned Judge in the High Court rejected their prayer for bail in view of their having participated in the occurrence.

4. On behalf of the accused persons it has been contended by the learned counsel for the accused that the 3 accused petitioners are entitled to bail as their case is not distinguishable from the co‑accused who were released on bail. He further submitted that there were injuries sustained by members of the accused party and some of the injuries are grievous in nature, but these injuries were suppressed by he complainant. He further submitted that petitioner Muhammad Akbar also entitled to bail as he is a man of 70 years of age and his case is at par with accused Muhammad Malik, who has been release on bail.

5. Learned counsel for the complainant on the other hand has argued that the opinion of the Investigating Officers was not a sufficient ground for grant of bail to the accused persons released by the High Court.

6. After hearing the learned counsel at length, we have reached' the prima facie conclusion on the materials placed before us that the prosecution case does not disclose that the accused party were the aggressors, in the sense that they trespassed on the property of the complainant or the deceased. The allegation seems to be that the occurrence took place near the hotel of Fazal Hussain deceased and not inside therein. Therefore, petitioners Muhammad Akbar and shah Sawar who were not attributed the fatal injuries to the deceased their guilt and their criminal liability is a matter of further inquiry, particularly when serious injuries were sustained by some of the accused persons. According to the F.I.R. Muhammad Akbar inflicted injures to the deceased on the leg, whereas Shah Sawar is alleged to have caused injuries to the witnesses and not to the deceased. The case of petitioner Muhammad, is, however, distinguishable, in that he is alleged to have opened the attack alongwith others co‑accused and inflicted the fatal injuries to the deceased. He is, therefore, not entitled to bail.

7. In the result we convert Petition No. 88‑R of 1985 into an appeal and allow it partly. Petition No. 89‑R of 1985 is, however, dismissed as no ground for interference is made out.

8. The result is that Muhammad Akbar and Shah Sawar are granted bail in the sum of Rs.20,000 with two sureties each to the satisfaction of Assistant Commissioner, Chakwal. The bail plea of petitioner Muhammad Afzal is refused.

M.Y.H. Bail granted.

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