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Criminal Miscellaneous No. 1238‑B of 1982, decided on 30th October, 1982.

‑‑‑S. 497 ‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail, grant of‑ Counter‑version given by co‑accused in his private complaint showing that accused fired at deceased after latter had fallen on ground and prima facie no right accrued to accused to fire at him because there was no imminent danger to their lives‑‑Bail refused to accused.

‑‑‑S. 497 ‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail, grant of‑ Specific allegations existing against accused that they gave stick blows on head of deceased which proved fatal‑‑Accused having suffered no injury and question of their having acted in self‑defence could only be decided at trial in light of evidence brought on record‑‑Accused, held, deserved no concession of bail.

‑‑‑S. 497 ‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail, grant of‑‑ Accused attributed stick blows on head of deceased but he also suffered five injuries two of them grievous and fracture of his mandible‑ Co‑accused suffering grievous injury already granted bail by Sessions Judge‑‑Case of accused requiring further inquiry as to whether 4fter receiving two grievous injuries he was still capable of inflicting blow on head of deceased‑‑Following principle of consistency, bail granted to accused as well.

Syed Mushtaq Shah for Petitioners.

A.A. ‑G for the State.

The prosecution case in brief is that on 4‑4‑1982 at about 12 noon Muhammad Bakhsh deceased in the company of Nasir, and Maui Ali injured P.Ws. and few others having crossed the river were going in the vicinity of village Kherpur Bumbly for collecting wood when all of a sudden 4 petitioners with 3 others namely, Khavind, Piran and Boora variously armed emerged from the bushes and attacked them. Shero, Sabaz Ali petitioners gave stick blows on the head of Muhammad Bakhsh deceased while Mughla petitioner fired a shot at his face. As a result he died at the spot. Nasir and Mauj Ali P.Ws. were injured by Wahid Bakhsh petitioner and Khavind, Piran and Boora his co‑accused. Muhammad Bakhsh deceased received 10 injuries in all, out of which 6 were gun shot wounds and the rest were the blunt weapon injuries. Two of the fire‑arm injuries were grievous while the 2 blunt weapon injuries on the head proved fatal. Nasir suffered' only one blunt weapon injury which was grievous as it involved the fracture of his arm. Mauj Ali P.W. received 7 injuries with blunt weapon and all of them were found simple. It may be stated here that Khavind, Piran and Boora co‑accused of the petitioners have already been released on bail by the learned Additional Sessions Judge, Dera Ghazi Khan for they had not caused any injury to the deceased Muhammad Bakhsh. The petitioners also applied to the Sessions Court for the grant of bail but their prayer was declined, therefore, they have approached this Court.

2. I have heard the learned counsel for the petitioners and also for the State.

3. Learned counsel appearing on behalf of the petitioners argued that there is a counter‑version of the incident which was put forth by Khavind Bakhsh co‑accused of the petitioner during investigation and subsequently before the Ilaqa Magistrate through a private complaint, wherein Muhammad Bakhsh deceased and Nasir and Mauj Ali the injured P.Ws were dubbed as the aggressor and Mughal, Sabaz Ali petitioners were stated to have acted in the exercise of their right of self‑defence alongwith their co‑accused Khavind and Boora. After recording preliminary evidence learned Magistrate summoned them (Injured witnesses in the present case) as accused vide order, dated 15‑9‑1982. It is urged that in view of the fact that the complainant party has been summoned as accused and the aggressor is yet to be determined, therefore, the petitioners are entitled to the grant of bail. It is next contended that the injuries of Mughal petitioner, Khavind Bakhsh and Boora co‑accused which are no less than 17 injuries including one grievous injury on the person of Boora and 2 grievous injuries on the person of Sabaz Ali, have been deliberately suppressed by the complainant party which means that the prosecution has not come in Court with clean hands and this fact recoils on the prosecution and renders it doubtful. Lastly it is urged that the petitioners are rotting in jail for over one and a half year without trial and on this score alone they deserve the concession of bail.

4. As against this learned counsel for the State strenuously argued that the petitioners are charged with an offence punishable with death or life imprisonment which is covered by prohibitory clause of section 497, Cr. P. C . and that the private complaint containing counter‑version was filed after 14 months of the occurrence and. the delay itself speaks volume about its hollowness. About the delay in the trial he submitted that in cases of extreme penalty, delay of at last 2 years constitutes a ground for bail in certain circumstances whereas, in the instant case only one and a half year have elapsed and it is expected that before expiry of statutory period of 2 years the trial of the petitioners would conclude.

5. I have carefully considered the submissions of the learned counsel for both the parties. I find that as per counter version given by Khavind Bakhsh co‑accused in his private complaint, dated 12‑6‑1982 Mughal petitioner fired at Muhammad Bakhsh deceased after he had fallen on the ground and, therefore, prima facie he had no right to fire at the deceased at that time, because there was no imminent danger to their lives. In my view, therefore, he has no case for bail.

6. As far as Wahid Bakhsh and Sheru petitioners are concerned, there is specific allegation that they gave stick blow on the head of Muhammad Bakhsh deceased which proved fatal. These petitioners admittedly did not suffer any injury whatsoever. The question of their having acted in self‑defence can appropriately be decided at the trial in the light of the evidence brought on record. Presently, therefore, they do not deserve the concession of bail. The petition to their extent is also dismissed.

7. As for as Sabaz Ali petitioner is concerned, no doubt that he has been attributed a stick blow on the head of Muhammad Bakhsh deceased but he has also suffered 5 injuries 2 of them being grievous involving the fracture of his mandible (jaw‑bone). Boora co‑accused also had suffered a grievous injury like him who has already been admitted to bail by the learned Sessions Judge.

8. In the circumstances of the case I am of the view that it requires further inquiry if Sabaz Ali petitioner after having suffered 2 grievous injuries was still capable of inflicting blow on the head of the deceased. Additionally, his case prima facie appears to be at par with that of Boora co‑accused who has been granted bail by the learned Additional Sessions Judge.

9. Keeping the "principle of consistency" in view I am inclined to allow this petition so far as Sabaz Ali petitioner is concerned.

10. The result is that the petition of Wahid Bakhsh, Sheru and Mughal petitioners is dismissed but that of Sabaz Ali petitioner is allowed. Sabaz Ali is directed to be released on bail subject to his furnishing security in the sum of Rs.20,000 with one surety in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Dera Ghazi Khan.

M.Y.H./3201/L Order accordingly.

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