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Criminal Miscellaneous No. 1195‑B of 1982, decided on 21st January, 1982.
‑‑‑S. 497 ‑‑Penal Code (XLV of 1860), S. 302/325/149‑‑Bail, grant of‑‑Case of accused at part with co‑accused who had been allowed concession of bail‑‑Keeping in view rule of consistency and fact that accused caused no Injury to deceased, accused also allowed bail.
Mian M. Jahangir Arshad for Petitioner.
Altaf Hussain Bokhari for the State.
This bail petition has been moved on behalf of Hashmat who has been arrested in case F.I.R. No. 171 dated 24‑4‑1982 registered at Police Station Arifwala under section 302/325/148 read with section 149, P.P.C.
2. According to the prosecution, the petitioner with 4 others namely, Muhammad Siddiq, Mehdi, Bashir and Sarwar having formed an unlawful assembly while armed with sticks, in prosecution of the common object of the said assembly caused the death of Muhammad Yousaf and made murderous assault on Muhammad Younus, Anwar and Ghulam Qadir P.Ws. Muhammad Yousaf deceased was belaboured by Muhammad Siddiq, Muhammad Younus P.W. was injured by Mehdi and Anwar P.W. was dealt two blows by Sarwar accused and one of them resulted in the fracture of his right hand. The role attributed to the petitioner is that he and his co‑accused Bashir (who has been enlarged on bail by the learned Sessions Judge) have dealt blows to Ghulam Qadir P.W. who had suffered 4 blunt weapon injuries including a grievous hurt which involved the breakage of cartilage bone of his left ear.
3. It may be stated' here, that Sarwar and Bashir co‑accused of the petitioner have already been allowed bail by the learned Additional Sessions Judge, Sahiwal by his order dated 20‑6‑1982 and 19‑9‑1982, mainly on the ground that they did not cause any injury to the deceased and also that the identity of Bashir was somewhat doubtful. However, the petitioner's prayer for bail was declined. Hence this petition.
4. I have heard the learned counsel for the petitioner as well as for the State and also perused the record.
5. Learned counsel appearing on behalf of the petitioner has argued that the case against the petitioner is false that injuries suffered by Sarwar and Mehdi co‑accused of the petitioner which are no less than a dozen, have been suppressed deliberately by the complainant party that a cross‑case was registered at the instance of the accused against the complainant party which no doubt has been recommended for cancellation, yet it deserved to be taken into consideration. In these circumstances it is yet to be determined as to which party was the aggressor. He next argued that the case of the petitioner was quite at par with Sarwar and Bashir co‑accused who have since been granted concession of bail but the same relief has been denied to the petitioner without any justification. Lastly learned counsel has urged that because the petitioner did not cause any injury to the deceased, therefore, the question of his being vicariously liable could be determined only at the trial stage.
6. As against this learned counsel for the State has vehemently opposed the petition, on the ground that since section 149, P.P.C. has been applied against the petitioner, therefore, he is certainly liable for the murder committed by a member of the unlawful assembly of which the petitioner was also a member.
7. I have considered the arguments of both the, parties in the light of the facts and circumstances of the case and the material available on record. There is no denying the fact the case of the petitioner is at par with that of Sarwar his co‑accused who has been allowed the concession of bail. Keeping in view the rule of consistency and the fact that the petitioner did not cause any injury to the deceased, I am disposed to exercise the discretion in favour of the petitioner. This petition is allowed. The petitioner is directed to be released on bail subject to his furnishing bond in the sum of Rs.10,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Arif wala.
M. Y. H./3197/L Bail granted.
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