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Criminal Bail Application No. 789 of 1986, decided on 28th January, 1987.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), Ss. 302, 307, 324 & 34‑‑Bail‑ Whether fatal shots were fired by accused while exercising his right of private defence and whether there existed reasonable grounds to believe that accused was guilty of an offence under S.302, Penal Code, question still to be determined‑‑Case requiring further enquiry‑‑Bail granted.

Qurban Ali Chohan for Applicant.

Sarfraz Ahmad, A.A.‑G. for the State.

Pir Bux Khamisani for the Complainant.

The applicant stands charged for committing offence under sections 302, 307, 324 and 34, P.P.C. According to the F.I.R., complainant Khair Muhammad was suspected of having illicit relations with wife of one Ramzan. The matter was referred to one Rais Ghous Bux Bhargari for settlement but no settlement could take place between the parties. As a consequence of this, the alleged incident took place on the night of 23‑6‑1985 when according to the allegations the applicant and three other co‑accused are alleged to have tried to break open the doors of the complainant's house and force their entry inside the house. It is then alleged that the applicant ran inside his house and brought a gun and fired at the complainant party as a result of which Muhammad Amin, Ghulam Shabbir and Mst. Nasim received injuries and fell down. One Akbar from the complainant's side is also alleged to have fired from his gun in the air in self‑defence and according to the statement of the complainant in the F.I.R. he was not aware whether any body from the other side had received injuries. Be that as it may when the injured were being transported to the hospital one of them namely Muhammad Amin expired on the way.

It may be pointed out that F.I.R. was also lodged by one Younus from the accused party in which the complainant party in the present case was shown as aggressor. Admittedly five persons from the accused party received injuries including two ladies namely Mst. Bushra and Mst. Pathani. The other persons who received injuries from the accused side were the applicant himself and his two brothers. The fight according to the Mashirnama of the place of incident as well as the two F.I.Rs. took place on the common street lying between the houses of the two parties. Admittedly all the accused persons belonging to both the parties are on bail and three of them belonging to the party of the accused were granted bail by this Court. Bail application filed by the applicant has been rejected by the learned Sessions Court as according to the allegations the fatal shot was fired by the applicant as a result of which Muhammad Amin died. The case of the applicant was, therefore, found distinguishable by the learned Sessions Court.

The contention of Mr. Qurban Ali chohan, learned counsel for the applicant has been that in view of the two counter‑versions even if it be assumed that the fatal injury was caused to Muhammad Amin by the applicant, there are still no reasonable grounds to believe at this stage that the applicant is guilty of an offence under section 302, P.P.C. as it is still to be determined whether the shots were fired by the applicant while exercising his right of private defence. In that case it will only have to be determined whether the applicant exceeded his right of private defence. It learned A.A.‑G and Mr. Pir Bux Khamisani, learned counsel appearing for the complainant that according to the earlier order of this Court, dated 28‑11‑1985, which was passed by my learned brother Munawar Ali Khan, J. (as he then was), bail was granted to the co‑accused but the case of the present applicant had been found to be distinguishable. It is true that while considering the bail application of the co‑accused, Munawar Ali Khan, J. had found their case to be distinguishable from the present applicant owing to the reasons that fatal injuries to Muhammad Amin had been caused by the shots fired by the present applicant, but at the same time the fact cannot be ignored that the present applicant was not the applicant in the earlier bail application. The arguments put forth by Mr. Qurban Ali Chohan appear to be convincing and the case clearly appears to be for further enquiry as contemplated by section 497(2), Cr.P.C.

Bail is, therefore, granted to the applicant in the sum of Rs.25,000 with one surety to be furnished to the satisfaction of the trial Court.

M.Y.H./S‑15/K Bail granted.

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