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Criminal Miscellaneous No.1438-B of 1986/BWP, decided on 2nd November, 1986.

---S.498--Penal Code (XLV of 1860), Ss.307/148/149--Bail, pre-arrest--Accused an Advocate, charged for firing at complainant party and causing simple injuries--Contention that complainant party forcibly carved out with a tractor a pathway in lands of accused Whether complainant party had ever a right of way, yet to be decided--Revenue record not showing existence of a sanctioned thoroughfare in lands of accused--Complainant party had gone to place of occurrence duly armed--Cross complaint had also been filed on behalf of accused party--Possibility, that accused who was a practising lawyer had been implicated by attributing a leading role to him to pressurise him to concede to right of way to complainant through his land, not ruled out--Mala fides existing on part of prosecution--Interim bail already granted confirmed in circumstances.

Muhammad Aslam for Petitioner.

Perwaiz Ahmad for the State.

Masood Ahmad Khan and Noor Muhammad Chishti for the Complainant.

The petitioner who is a local Advocate, has applied for the grant of pre-arrest bail in a case registered against him. and few others under sections 148 and 307 read with section 149,PPC.

2. Shahnawaz, complainant, reported at Police Station Khairpur Tamewali, that on 2-7-1986 while he was coming home from his land in the company of Muhammad Siddiq on a tractor driven by Muhammad Ramzan, and when they passed through the lands of Muhammad Hussain Khan (wrongly described as Ghulam Hussain in the FIR), there came the petitioner armed with a pistol. Noor Muhammad with gun, Manzoor with pistol, Faiz Muhammad Hap and Jindoo armed with sticks and opened fire on them. Hafiz Muhammad Siddiq was injured in the head with firing by the petitioner and that the complainant and Muhammad Ramzan were injured with indiscriminate firing by the accused party. The complainant, also, allegedly fired from his licensed gun in the air in self-defence. The medico-legal reports show that the complainant and Muhammad Ramzan suffered one injury each and Muhammad Siddiq suffered three, and all of them have been declared to be simple in nature. The petitioner's prayer for grant of pre-arrest bail was declined by Additional Sessions Judge, hence this application. It may be stated that all the co-accused of the petitioner have since been allowed post-arrest bail by the lower Court.

3. It is contended on behalf of the petitioner that the complainant party had attempted to, forcibly, carve out a path for their use through petitioner's land to which his servants (co-accused) had put up resistance and that when the complainant party resorted to firing, they also fired to defend their person and property, whereafter the complainant party in conspiracy with the police succeeded in getting the instant case registered attributing leading role to the petitioner in order to pressurise him to concede right of way to the complainant party through his lands; that a cross-complaint has since been filed against the complainant party; that the injuries of Siddiq PW attributed to the petitioner are "pin-pointed" lacerations which, besides being minor injuries seem to have been fabricated; and that it is a case which in the circumstances requires further inquiry for determining as to which party was in fact the aggressor

4. SI Saeed Ahmad, the Investigating Officer, on last date of hearing (25-10-1986) was directed to visit the spot and find out if actually there exists any public thoroughfare on the spot and whether in the revenue record pertaining to that land bears an entry about existence of such, a pathway The SI states that he has obtained a report from Mahmood Hassan Patwari according to which no sanctioned pathway runs through Killas No.2, 9, 12, 19 and 22 of lot No.34, which is under the Cultivating possession of the petitioner. Learned counsel appearing on behalf of the complainant states that the occurrence took place in Killa No.2 of square No.6, from where the blood-stained earth was removed, belonging, to the complainant party and not in land of the petitioner. Further argues that since the petitioner has been attributed specific role of firing at Siddiq P.W in the FIR, therefore, he is not entitled to the grant of pre-arrest bail.

5. I have considered the arguments of learned counsel for both the parties and also perused the record. It is clearly stated in the FIR by Shahnawaz, complainant (the injured PW) that the occurrence took place when he was passing through the lands of Ghulam Hussain Khan (means to be Muhammad Hussain Khan, petitioner, as confirmed by revenue record), therefore, it does not lie in mouth of prosecution to say now that the occurrence took place in Killa No.2 of square No.6 belonging to the complainant party.

6. In the circumstances narrated above, it remains to be decided if the complainant party ever had a right of way through the land in possession of the accused party The revenue record does not show existence of a sanctioned thoroughfare there. Furthermore, the fact, that complainant had gone to the place of occurrence armed with his licenced gun is not without significance. A cross-complaint on behalf of accused party has also been filed. The possibility, that the petitioner who is a practising lawyer has been implicated of attributing a leading role to him to pressurise him to concede right of way to the complainant' through his lands, cannot be ruled out. This constitutes mala fides on the part of the prosecution, therefore, I find this a fit case for grant of pre-arrest bail. The interim pre-arrest bail granted earlier is hereby confirmed.

M. Y. H. /M-401/L Interim anticipatory bail confirmed.

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