' This order disposes of application for release on bail of seven accused, namely, Khanu son of Raja, Muhammad son of Jahana, Fazal Ahmed son of Jahana, Manzoor son of Gullu, Ahmed son of Raja, Baza son of Ahmed and Muhammad Ali son of Shera for the offences of murder, attempted murder and rioting, etc.
2. The case of the prosecution is that the lands of the petitioners were exchanged during consolidation proceedings, obviously against the wishes of either of them. Sultan son of Rehman and others forbade the complainant side from use of their watercourse for cattle etc.. On the day of occurrence which took a heavy toll of four lives Mst. Chiraghan Bibi had taken cattle to the at ercourse in question. Nazir, Sultan and Khan who are not before me abused Mst. Chiraghan Bibi.
Ahmad Yar, Nazir, Fateh Muhammad and Humayun rushed to the site. The parties were separated by Jahana son of Khanu and they repaired to their respective places, After a short while the accused numbering 18 in all, armed variously attacked the complainant side as a result of which Amir, Nazir, Mst. Aisha and Mst. Jallan lost their lives. Khizar Hayat, Humayun, Ahmed Yar, Fateh Muhammad and Muhammad prosecution witnesses were also caused injuries by the accused. The report was lodged by Ahmad Yar within seven hours of the incident at police station distant 18 miles from the site. The petitioners have been named in the report.
3. The petitioners applied to the learned Sessions Judge for grant of bail that they had been falsely implicated in the case, and that Khanu petitioner (1) was a sick person. The application was turned down by the learned Sessions Judge for the reason that there appear reasonable grounds for believing that the petitioners were guilty of the charge and Khanu petitioner could be treated for tuberculosis in jail hospital.
4. The instant application was pressed on the grounds :
(i) Khanu petitioner No, 1 was sick and an infirm person. His case is covered by proviso to subsection (1) of section 497, Cr. P. C. (ii) The petitioners had not caused injuries to any of the four deceased. Their case was, therefore, distinguishable from that of the remaining eleven accused in the case. Shama, Hayat, Baza and Lala accused had serious injuries on them which have not been mentioned in the first information report. The first information could not be relied on even for the limited use of deciding the question if there was a prima facie case against the petitioners. Total number of injuries on the complainant side does not justify the allegation that as many as 18 persons had launched the attack.
5. Khanu (petitioner No, 1) was got examined by Medical Superintendent District Headquarters Hospital, Jhang. The doctor has reported tha the petitioner was suffering from aortic incompetence and cardiac insufficiency. He appeared' to be about 70 years. Learned counsel RA the State says tha he was not advised to oppose the grant of bail to Khanu petitioner as his case was amply covered by proviso to subsection (1) of section 497, Cr. P. C. It would, therefore, be sheer academic to offer detailed comments on th argument raise on the side of the petitioner. A passing reference to the authorities : Sakhi Muhammad v. The State (1) and Banaras v. State (2) cited by learned counsel for the petitioners would suffice. In the first case Sakhi Muhammad an accused in case for the offence under section 302/307/ 148/149, P. P. C, was allowed pre-arrest bail inter alia on the ground of old age. In the next case, the accused who was also charged for the offence of murder was found to have been suffering from serious disease of idiopathic epilepsy. The doctor had reported that the petitioner may remain in jail if proper medicines were supplied to him. The accused was released on bail.
' Khanu petitioner is allowed bail in the sum of Rs, 10,000 (ten thousand) with two sureties with personal bond in the like amount to the satisfaction of learned Assistant Commissioner/Duty Magistrate, Jhang.
6. I have perused the first information report carefully and find that it is not correct to say that the remaining six petitioners before me had not caused injuries to any of the four deceased in the case. The report alleges that all the 18 accused had showered blows on the four deceased persons and the witnesses. It is not necessary that the first information report should be marked with precise details as to which accused had caused particular injury to the deceased or the witnesses.
Over-all assessm ent of facts of the case justifies the view that there exist reasonable grounds for believing that the petitioners were guilty of the charge punishable with death. The argument that total number of the injuries (31) on the four deceased and the witnesses does not appear to sustain the allegation of involvement of 18 persons in the attack does not have much attraction in it. It is not permissible to assess or evaluate the evidence for the purposes of grant of bail. TheB question of bail has to be decided on a tentative assessment of the circumstances of the case, evidence in the hands of the prosecution and other data available at this stage.
In the result, the application for grant of bail to the petitioners excepting Khanu stands rejected.