' MUHAMMAD AFZAL SOOMRO, J.---Bythis order I propose to dispose Criminal Bail Applications Nos.
651 of 2005 and 832 of 2005 by a consolidated order as both arise out of one and the same F.I.R.
2. At the very outset Mr. Nisar Ahmed G. Abro learned counsel for the applicants does not press the application for bail on behalf of applicants Nos. 2 and 3, which is dismissed as such.
3. The brief facts of the case as unfolded in the F.I.R. Are reproduced hereinbelow:- "It is complained that my maternal grandmother, namely Satbhrai had expired and today I and my father Ali Hassan cameto the Phulpoto village of Sooban alias Sher Muhammad Phulpoto to attend the funeral. My relatives took the dead-body of my maternal grandmother to bury tpwards graveyard while I and my father Ali Hassan along with certain other relatives remained at the funeral-mat. In the meantime, at about 1.30 p.m., one Shahzado alias Bolo son of Mumtaz, 2.Fateh Ali son of Muhammad Bachal, 3.Manzoor All son of Ali Muhammad Phulpoto, residents of village Haji Mangio Phulpoto, Taluka Warah, 4.Qamaruddin son of Laloo, 5.Haji son of Ahmed, 6.Iqbal son of Muhammad Waris, by caste Phulpoto, who were having shortguns in their hand, 7.Akhtiar alias Papoo son of Arbab Ali,
8. Bakhshal alias Mann son of Hakim Ali, who had hatchets, all by caste Phulpoto, residents of village Satoo Phulpoto, Taluka Warah, intruded into the house. Of them, Shahzado alias Bolo and Qamar-ud-Din pointing their shortguns asked us not to move and they will murder Ali Hassan as All Hassan has been restrained from visiting the village. After that, Manzoor Ali fired gunshot straight at my father Ali Hassan with intention to murder, which hit him above his right eye and Shahzado alias Bolo opened gunshot, which hit my father at right side of his chest. Qamar-ud-Din fired gunshot, which hit my father on his back. On sustaining such injuries, my father Ali Hassan fell down by raising cry. Thereafter, accused Haji also fired gunshot, which hit my father on his left arm near elbow; accused Fateh Ali fired gunshot, which hit my father at right fore-arm and accused Iqbal also fired gunshot, which hit my father Ali Hassan on his wrist of arm.
Thereafter accused Akhtiar alias Papoo and Bakhsal alias Mann caused sharp side hatchet blows to my father Ali Hassan at back of his neck and head. We raised cries, which attracted my cousin Muhammad Ismail son of Sher Muhammad and Mst. Bakhtawar wife of Sher Muhammad Phulpoto, who tried to rescue Ali Hassan, on which, accused Akhtiar alias Papoo inflicted hatchet blows to Muhammad Ismail at his head and other parts of body, while accused Bakhshal alias Mann inflicted blunt side hatchet blows to Mst. Bakhtawar at her left shoulder, back and other parts of body. Thereafter all the accused persons fled away along with their weapons. We then saw that my father Ali Hassan after struggling for life passed away within our sight. I then left the above witnesses at the dead-body and now report to the above effect that the above-mentioned accused have committed murder of my father. I am complainant, investigation be made."
4. After usual investigation and in due course the applicants were arrested and sent up to stand trial. Both the applicants applied their release on bail in the Court of learned . Sessions Judge, KamberShandadkot at Kamber but their request was turned down, vide order, dated 29-9-2005.
Hence this application.
5. I have heard the learned counsel for the respective parties. It have been contended by the learned counsel for the applicants that they have been falsely implicated in the commission of this case. The allegation against the applicant Fatch Ali is that he fired gunshot which hit the deceasedat right fore-arm while accused Iqbal is alleged to have fired at the deceased which hit him on the wrist of arm of the deceased. It has also been contended that both the fire-arm injuries are on the non-vital part of the body. It has also been contended that the direct allegation of commission of murder of deceased Ali Hassan is attributed to co-accused Manzoor, Shahzado, Qamar-ud-Din and Bashir. Learned counsel further submitted that injuries Nos. 10 and 11 are the result of one shot and the doctor, who conducted autopsy of deceased, has not yet been examined. In that, eventuality learned counsel submitted' that the offence if any alleged against the. Applicants does not attract the prohibition contained in section 497, Cr.P.C. And the case of the applicant needs further enquiry, and they are entitled to be released on bail.
6. On the other hand, Mr. Ali Nawaz Ghanghro, learned counsel for the complainant while opposing the bail applications submitted that it is a day time incident and the F.I.R. Was lodged promptly.
Both the applicants are .Named in the F.I.R. Coupled with the supporting medical evidence and the recovery of gun from applicant Iqbal. He also submitted that the P.Ws. Are natural witnesses and there is no possibility of false implication of the applicants at the hands of complainant.
7. Mr. Muhammad Ismail Bhutto, learned State counsel conceded the arguments of Mr. Ali Nawaz Ghanghro and opposed the bail application.
8. I have heard the arguments of the learned counsel for the parties and perused the record carefully. The record reveals that although both the applicants are named in the F.I.R. With specific role of firing at the deceased but the injuries attributed to the applicants are on non-vital part of the body. The perusal of post-mortem notes would reveal that injuries Nos. 10 and 11 are attributed to the applicants. Both these injuries are said to be the result of one shot. Further, they are simple in nature and obviously will not attract the prohibitory clause of section 497, Cr.P.C. The enmity is admitted in the F.I.R.
9. In such circumstances since the applicants are not alleged to have caused fatal injuries to the deceased, they have been able to make out a case for bail. Consequently both the applicants, namely Iqbal sonof Muhammad Waris and Fateh Ali son of Muhammad Bachal are allowed bail provided they furnish surety in the sum of Rs,200,000 each with P.R. In the like amount to the satisfaction of the Trial Court.
10. Criminal Bail Applications Nos. 651 and 832 of 2005 stand disposed of.
2006 M L b 1933 [Lahore] Before Ijaz Ahmad Chaudhry, J KHUSHNOOD alias ARIF---Petitioner versus THE STATE---Respondent Criminal Miscellaneous No,4648-B of 2006, decided on 27th June, 2006.
Criminal Procedure Code (V of 1898)--- ----S. 497(2) -PenalCode (XLV of 1860), Ss.302, 109 & 34---Bail, grant of---Further inquiry--- Occurrence in the case had taken place at 10.00 p.m. In the house of co-accused and the presence of deceased at the said house during the odd hours of night, cast serious doubt on prosecution case---One of co-accused was declared innocent during investigation and accused had been introduced as accused who allegedly participated in the occurrence---Parentage of accused had not been mentioned in F.I.R. By complainant---Even otherwise accused was not resident of the same place where complainant was residing in the days of incident and how he had come to know about the name of accused, was a question of further inquiry---Even otherwise presence of complainant and other eye-witnesses at the spot was also prima facie found doubtful as they were chance witnesses---Medical evidence also did not support the story of ocular account--- Possibility of death of deceased due to suffocation by pressing his neck could not be ruled out--- Witnesses had not stated that accused had pressed the neck and had murdered deceased in that manner---Medical evidence, prima facie was in contradiction with ocular account and even otherwise, possibility of involvement of accused in the case due to suspicion, could not be ruled out---Accused, in circumstances could not be kept behind the bars for indefinite period as there was no likelihood of conclusion of the trial in near future---Case of accused otherwise was of further inquiry covered by S.497(2), Cr.P.C.-- Accused was admitted to bail, in circumstances. [p.
1935] A Muhammad Anwar Bhatti for Petitioner.
Muhammad Akram Javaid for the Complainant.
Syed Tahir Abbas Rizvi for the State along with Mushtaq Ahmad A.S.-I.With record. ORDER ' IJAZ AHMAD CHAUDHRY, J.---Through this application under section 497, Cr.P.C. Petitioner Khushnood alias Arif seeks post-arrest bail in case F.I.R. No,465 of 2005, dated 3-10-2005 registered under sections 302/109/34, P.P.C. At Police Station Alipur Chatha District Gujranwala an the statement of Muhammad Aslam complainant.
2. The brief facts as alleged in the F.I.R. Are that Muhammad Akram deceased used to visit the house of Mst. Shazia co-accused whereas Zafar Iqbal co-accused and Arif Iqbal petitioner also used to visit the same. Muhammad Akram (deceased) brother of the complainant asked Mst.
Shazia co-accused to restrain Zafar co-accused and Arif petitioner from visiting her house but she did not do so. On 3-10-2005 at about 9.45 p.m. Mst. Shazia co-accused came to the house of the complainant and asked Muhammad Akram to accompany her as the guests had come from Lahore and they wanted to meet him in her house. Muhammad Akram went along with Mst. Shazia co-accused to her house. At about 10-00 p.m. The complainant, Javed Iqbal and Muhammad Nazir P.Ws. Were proceeding to their house from the main Bazar, when they came to across the house of Mst. Shazia co-accused, they saw that Mst. Shazia co-accused, was 'holding Muhammad Akram in "Jappha" whereas Arif Iqbal petitioner and Zafar Iqbal co-accused while armed with iron rods were abusing the deceased and stated that he should be taught a lesson for restraining them to visit the house of Mst. Shazia co-accused. Then they inflicted successive blows hitting on different parts of Muhammad Akram deceased who died at the spot.
3. Learned counsel for the petitioner contends that the name of the petitioner is Khushnood and he is not known as Arif Iqbal as claimed by the complainant in the F.I.R. It is also contended that the complainant has not disclosed any source that how he came to know about the name of the petitioner as Arif Iqbal and parentage of both the accused Arif Iqbal and Zafar Iqbal has not been, mentioned by the complainant. The petitioner has been involved in the present case on suspicion and nothing is to be recovered from him. It is also contended that simple injury has been attributed to the petitioner which is an abrasion and injury No,3 is the main injury but death according to the doctor was as a result of suffocation and the eye-witnesses had not seen the incident otherwise they would have narrated that who had caused the same.
4. Learned counsel for the complainant and the State on the other hand have opposed the application on the ground that the name of the petitioner was Arif and he is involved in the present case which falls within the prohibitory clause; that the petitioner has committed a heinous offence; that the medical evidence supports the prosecution story and the application of the petitioner may be dismissed.
4A. I have heard the arguments advanced by the learned counsel for the parties and also gone through the entire record. The occurrence in the present case had taken place at 10.00 p.m. In the house of Mst. Shazia and the presence of the deceased at the said house during the odd hours of night casts serious doubt in the prosecution case. It is also found that Amjad Iqbal co-accused was declared innocent during investigation and the petitioner has been introduced as the accused who allegedly participated in the occurrence while claiming by the prosecution that his name was Khushnood alias Arif. The parentage of the petitioner has not been mentioned in the F.I.R. By the complainant. Even otherwise the petitioner is not resident of the same place where the complainant was residing in the days of incident and how he had come to know about the name of the petitioner is a question of further inquiry. Even otherwise the presence of the complainant and other eye-witnesses at the spot is also prima face found doubtful as they are chance witnesses and medicalevidence also does not support the story of the ocular account as injuries ANos.1 and 2 are only abrasions and had not contributed in the death ofthe deceased while injury No,3 on the neck according to the post-mortemexamination was sufficient to cause death. The possibility of the death of the deceased due to suffocation by pressing the neck of the deceasedcannot be ruled out. The witnesses had not stated that the accused hadpressed the neck and had murdered the deceased in that manner. The medical evidence is prima facie in contradiction with the ocular account and even otherwise the possibility of involvement of the petitioner in thepresent case cannot be ruled out due to suspicion. The petitioner in the above circumstances cannot be kept behind the bars for indefinite periodas there is no likelihood of the conclusion of the trial in the near future. The case of the petitioner otherwise is of further inquiry and is covered by subsection (2) of section 497, Cr.P.C.
5. For the foregoing reasons, the instant bail application is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.