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Criminal Miscellaneous No.1780-B of 1987, decided on 18th July, 1987

---S.497--Penal Code (XLV of 1860), S.302/148/149--Bail, grant of--Accused attributed only ineffective firing and not stated to have, caused any injury to deceased--Accused admitted to bail.

Ch.Muhammad Yaqoob Sidhoo for Petitioner.

Sh. Ihsan Ahmad for the State.

Badar Munir for the Complainant.

Date of hearing: 10th July, 1987.

Petitioners, who are accused in a case under section 302/148/149, PPC registered at P.S. Saraj Moghal vide FIR No.221 dated 3-11-1986, have filed this petition for post-arrest bail.

2. Case of the prosecution as set out in the FIR is that the complainant party and the accused/ petitioners had a dispute over some land which, it is alleged, was owned by Wali Muhammad, but was in illegal possession of Maqbool Ahmad, father of Mansha and Arshad petitioners. Civil Court gave a decision in favour of Wall Muhammad a month and a half prior to the occurrence whereupon. Wali Muhammad approached Maqbool and asked him to deliver possession of the land to him but the latter refused. On the day of occurrence viz., 3-11-1986 at 8 a.m. complainant party comprising five persons including two sons of Wali Muhammad and one Hakam Ali resident of Attari Kalan, who was stated to be a friend of Wali Mnhammad, want on the land in dispute allegedly for the purpose of resolving the dispute about the land. Petitioners variously armed were already present there. Arshad pp'"inner was allegedly armed with a rifle and the remaining petitioner with guns. On seeing the complainant party, petitioners opened fire on their respective weapons. Shot fired by Muhammad Arshad hit Hakam Ali who fell down and died instantaneously. Petitioners thereafter left the scene of occurrence while firing.

3. Petitioners Nos.2 to 7 were arrested by the police on 16-11-1986 whereas Muhammad Anwar petitioner No .l was taken into custody on 23-11-1986. Application' for bail moved by the petitioners has been dismissed by the learned Sessions Judge, vide order dated 15-4-1987 Hence the present petition.

4. I have heard the learned counsel for the petitioners and the state as also the learned counsel appearing for the complainant. Learned counsel for the petitioners submits that Muhammad Mansha accused has been found innocent by the DSP during the investigation and his name has been-placed in column No.2 of the challan. Learned counsel for the State and the complainant do not deny this fact. Investigating officer present in Court states that during investigation, it has been found that on the day of occurrence, Mansha petitioner had travelled by P.I.A. from Mianwali to Lahore. Learned counsel for the petitioners further submits that the petitioners were in possession of the land in dispute. Maqbool Ahmad had filed an appeal against the judgment and decree of the trial Court and had obtained a stay order. On the day of occurrence, the complainant party came armed on the land in dispute to dispossess the petitioners forcibly. They attacked the petitioners and in the process, Muhammad Anwar petitioner suffered a fire-arm injury on his head at the hands of the complainant party. Petitioners acted in self-defence as a result whereof Hakam Ali from the complainant side received a fire shot and he died on the spot. Learned counsel points out that the injury suffered by Muham nd Anwar petitioner has not been explained in the FIR lodged by the complainant party. Learned counsel further submits that the petitioners tried to get the counter-case registered with the police but they failed in their effort. They then filed a private complaint on 4-12-1986 in which the complainant party had been summoned as accused to face trial for the offences under section 307/447/148/149, PPC Learned counsel states that the persons summoned as accused in the complaint case were arrested and have since been bailed out. 1t is also contended by the learned counsel that petitioners Nos. 1 to 6 have been attributed only ineffective firing and no incriminating recovery has been effected from them

5. Learned counsel appearing for the State and the complainant have feebly opposed the prayer for bail by submitting that the challan has already been submitted in Court and the case is fixed for prosecution evidence before the learned Sessions Judge on 25-7-1987. I have asked the learned counsel for the State if he could state with certainty that the trial would conclude within a month or two. He is not in a position to make any such statement. Learned counsel for the State and the complainant have not been able to deny shat Muhammad Anwar petitioner was also injured in the occurrence. In fact, the medical certificate (Annex 'C') shows that Muhammad Anwar was examined by a medical officer, Civil Hospital, Pattoki, on 5-11-1986 at 9.00 a.m. and he was found to have suffered a fire-arm injury. FIR is silent about this injury. Learned counsel for the complainant admits that members of the complainant party have been summoned in the private complaint filed on behalf of the petitioners and they have been bailed out after arrest.

6. In the circumstances aforementioned, without expressing any opinion on the merits of the case lest it prejudice the case of any of the parties, I am inclined to allow bail to petitioners Nos.1 to 6 who are not stated to have caused any injury to Hakam Ali deceased and who have been attributed only ineffective firing. It is accordingly A ordered that petitioners Nos. 1 to 6 be released on bail in the sum of Rs.50,000 (Rupees fifty thousand) each with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Kasur. As regards Muhammad Arshad, petitioner No.7, since fatal shot has been attributed to him, bail petition qua him is dismissed.

M.Y.H./M-408/L Order accordingly.

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