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Criminal Miscellaneous No. 1252‑B of 1982, decided on 7th November, 1982.

‑‑‑S. 497 ‑‑Penal Code (XLV of 1860), Ss. 302 & 307/34‑‑Bail‑‑Prima facie no overt act appearing to have been committed by accused and medical evidence belying that he hanged his head against nose of deceased‑Bail granted.

‑‑‑S. 497 ‑‑Penal Code (XLV of 1860),Ss.302 & 307/34‑‑Bail‑‑Accused giving a stick blow to prosecution witness and injury thus caused described as bruise‑‑Accused not even touching deceased and his case requiring further inquiry as to whether he participated in occurrence on fateful day and if so did he share common intention with his co‑accused‑‑Bail granted.

‑‑‑S. 497 ‑‑Penal Code (XLV of 1860), Ss. 302 & 307/34‑‑Bail‑ Occurrence taking place out of misconduct of accused who also caused knife injury in abdomen of complainant which was described as simple‑ Bail refused.

Mian Khuda Bakhsh with Mian Arshad Ali for Petitioners.

Mian M. Zafar Yasin for the Complainant.

Shahid Latif for the State.

The three petitioners have approached this Court for the grant of bail in a case registered under section 302/307 read with section 34, P.P.C. at Police Station Roheelanwali for having caused the murder of Jindwada and murderous assault on Sher Muhammad and Bashir Ahmad P.Ws. in the afternoon of 7‑7‑1982 at village Jhoke in the vicinity of Police Station Roheelanwali. Their earlier similar petition was dismissed by the Additional Sessions Judge, Muzaffargarh on 2‑9‑1982. Hence this petition .

2. The prosecution case in brief is that on the fateful day, Sher Muhammad complainant's son Allah Bachaya was kissed by Muhammad Hussain petitioner against his wishes. Allah Bachaya went and complained about the misconduct of Muhammad Hussain to his parents, thereupon Sher Muhammad complainant went to the place where Muhammad Hussain was sitting and admonished him. Aforesaid Muhammad Hussain was allegedly staying as guest with the accused party those days, who felt annoyed with Sher Muhammad complainant. In order to vindicate their honour Allah Bakhsh armed with knife, Muhammad Hussain petitioner armed with knife, Muhammad Shaft petitioner armed with Sota and his brother Nazir empty handed went to the place of Sher Muhammad complainant and launched attack on him and the persons sitting by his side. It is alleged that Allah Bakhsh co‑accused of the petitioner plunged his knife into the flank of Jindwada, who died instantaneously of this injury. Allah Bakhsh also assaulted and inflicted blow under the armpit of Bashir P.W. which was later on declared as simple. Muhammad Shafi gave a stick blow on the left shoulder of Sher Muhammad P.W. and Muhammad Hussain petitioner inflicted a knife injury in his abdomen which proved to be simple subsequently. It may be stated here that Sher Muhammad complainant, his brother Jindwada deceased and Bashir Ahmad P.W. are the step brothers of Nazir, Muhammad Shafi petitioner and their co‑accused Allah Bakhsh.

3. I have heard the learned counsel for the petitioners for the State, as well as for the complainant and also' perused the record with their assistance.

4. It is contended by the learned counsel appearing for the petitioners that Nazir Ahmad petitioner who went to the place of occurrence empty handed had allegedly banged his head in the face of the deceased hitting his nose but no such injury was found at his nose by the doctor. He, therefore, emphasised that the participation of Nazir petitioner is highly doubtful. He next contended that injury attributed to Muhammad Hussain and Muhammad Shafi petitioners are simple in nature and that these petitioners did not cause any injury to the deceased, therefore, they cannot be held vicariously liable for the offence of murder. Learned counsel appearing for the State as well as for the complainant have vehemently opposed this petition on the ground that the petitioners with principal accused Allah Bakhsh had allegedly gone armed to the place of occurrence with common intention of causing the death of Jindwada and making an attempt on the lives of Sher Muhammad and Bashir P.Ws., therefore, he concluded that in these circumstances the petitioners being vicariously liable, are not entitled to the concession of bail.

5. I have considered the arguments advanced by the learned counsel for both the parties and find that prima facie no overt act appears to have been committed by Nazir Ahmad because the medical evidence belies that he banged his head against the nose of the deceased. He, therefore, in my view, is entitled to the grant of bail.

6. As far as Muhammad Shafi petitioner is concerned, he is stated to have given a stick blow on the left shoulder of Sher Muhammad B P.W. which injury has been described as "bruise". He did not touch the deceased, therefore, his case also needs further inquiry as to whether he participated in the occurrence on the fateful day and if so, did he share the common intention with Allah Bux, his co‑accused or not

7. As far as Muhammad Hussain petitioner is concerned, he allegedly kissed Allah Bachaya son of Sher Muhammad complainant which annoyed the complainant party who did nothing beside admonishing him and it was at his instigation that the accused party feeling insulted, having armed themselves went to attack Sher Muhammad, Bashir P.Ws. and Jindwada deceased at their place. As the occurrence has arisen out of misconduct of this petitioner, who also caused injury with a knife in the abdomen of Sher Muhammad complainant though later proved simple, I am of the view that he does not deserve to be bailed out. The result is that the petition to his extent stands dismissed. However, Muhammad Shafi and Nazir petitioners are allowed bail subject to their furnishing bond in the sum of Rs.10,000 each with one surety in the like amount to the satisfaction of the A. C. /Duty Magistrate, Muzaffargarh.

M.Y.H./3195/L Order accordingly.

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