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Criminal Miscellaneous No. 3277/B of 1986, decided on 1st December, 1986.

---S. 497--Penal Code (XLV of 1860), S. 307--Bail, grant of--Two cross-cases arising out of same occurrence--On complainant's side only one person sustained a simple injury as against simple and one grievous injury suffered by accused and his co-accused--Question as to which party was aggressor yet to be determined--Accused allowed bail, in circumstances.

Abdullah Baig with Hamid Ullah Niazi and Rao Hamid Mukhtar Khan for Petitioner.

Bashir Ahmed Baig for the State.

Date of hearing: 1st December, 1986.

This is petition under section 497/498, Cr.P.C. by Safdar Ali, petitioner for bail in respect of a case instituted against him and two others under section 307/34, P.P.C. at Police Station Saddar, Gujranwala on 2-9-1986.

2. The prosecution case in brief is that on 1-9-1986 at 9-00 p.m. when Muhammad Ali injured P.W. happened to pass by near the grocery shop of Qurban Ali, co-accused, he found Safdar Ali, petitioner, with his brother Qurban Ali and his Sali's son Shahid Ahmad present there. Safdar Ali, petitioner, and Qurban Ali, co-accused, were both armed with guns, and Shahid Ahmad, co-accused, was armed with a revolver. On seeing the complainant, Safdar Ali, petitioner, abused him and Qurban Ali, co-accused, shouted a Lalkara that the complainant should not be allowed to go alive. Safdar Ali, petitioner, then fired at Muhammad Aleem P.W., hitting him on the left side of his chest, Qurban Ali, co-accused, fired at the complainant, hitting him on his left shoulder. Shahid Ahmad, co-accused then fired at the complainant, which shot missed. Then all the accused felled Muhammad Aleem complainant and gave injuries to him with the butt-ends of their guns. The motive for the occurrence was that Afzaal Ahmad, a brother of Muhammad Ali P.W., had murdered Abdul Majid the father of Safdar Ali, petitioner, and Qurban Ali, co-accused, in which case Afzaal Ahmad had been convicted, but was on parole.

3. Five days later another case was registered by Qurban Ali, co-accused, against Muhammad Aleem, injured P.W. his brother Afzaal Ahmad and his nephew Fawad Ahmad and two of his Mohalladars, Naseer Ahmad and Riasat Ali, in which Qurban Ali, co-accused, mentioned that he was sitting at his grocery shop, with Mistri Latif when Afzaal Ahmad turned up, armed with a revolver, and uttered a Lalkara that he had been filing application to the Jail Authorities against him and that he would teach him a lesson on that account. He then fired at Qurban Ali co-accused, which shot missed. Qurban Ali, co-accused, then ran into his house and, after arming himself with a gun, came out, whereupon he found Muhammad Aleem P.W., armed with a Sots, Fawad Ahmad, armed with a Sua Naseer Ahmad, armed with an iron pipe, and Riasat Ali, armed with a revolver, were present. Muhammad Aleem, inflicted a Sota blow on the back of Qurban Ali, co-accused, followed by Fawad Ahmad who inflicted a Sua blow on his right shoulder. Muhammad Aleem P.W. snatched the gun from the hand of Qurban Ali, co-accused, and broke the same by hurling it on the ground. Naseer Ahmad inflicted an injury on the back of Qurban Ali, co-accused, breaking his vertebra. Qurban Ali, co-accused, fell down, whereupon all the accused began beating him. On his alarm, Safdar Ali, petitioner, and Shahid Ahmad, co-accused, appeared, on the scene. Safdar Ali, co-accused, was armed with a gun. Safdar Ali, petitioner, fired at Muhammad Aleem P.W. injuring him. Thereafter, all the accused snatched the gun from the hands of Safdar Ali, petitioner, and broke it. Then all the five persons began injuring Safdar Ali, petitioner, and Shahid Ahmad, co-accused. Afzaal Ahmad and Riasat Ali kept on firing in the air.

4. I have heard the arguments of the learned counsel for the petitioner and the State and have perused the record. There are two cross cases arising out of the same occurrence. In the present case, Muhammad Aleem P.W. has been injured, whereas in the other cross case Safdar Ali, petitioner, and Qurban Ali and Shahid Ahmad, co-accused, have been injured. It yet remains to be determined as to which party is the aggressor. The fire-arm .injuries on Muhammad Aleem P.W. are simple, though the majority of them are on a vital part of the body. The fire-arm injuries on the three accused of this case are also simple, except the injuries on the right side of the neck and the right clevicle of Qurban Ali, co-accused, which have resulted in the paralysis of his whole body, except his neck and head. The injuries on Muhammad Aleem P.W. are not imminently dangerous as to disentitle Safdar Ali, petitioner, from being released on bail. See Ch. Muhammad Anwar Sahma v. The State 1976 S C M R 168. Without going on the record as having given finding in the matter, I would only say for the limited purposes of this bail petition that the petitioner is entitled to be released on bail.

5. For the foregoing reasons this petition is accepted and Safdar Ali, petitioner, is released on bail, subject to his furnishing security in the sum of Rupees twenty thousand (Rs.20,000) with one surety in the like amount to the satisfaction of the Assistant Commissioner, Gujranwala.

S. G. D./732/L. Bail allowed.

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