As per F. I. R. No. 81, dated 2nd June, 1981 of the Police Station Khairpur, District Bahawalpur, petitioners and their two co-accused are accused of an offence under section 307/148/149. P. P. C.
The actual part assigned to petitioners is that petitioner Allah Diwaya armed with a -12 bore gun fired at Jan Muhammad which hit Jan Muhammad in the right thigh and when on hearing the sound of fire, Muhammad Amin and Dost Muhammad reached the spot, petitioner Shera fired with his shot-gun which hit Dost Muhammad on the right hand thumb and Muhammad Sadiq petitioner fired with his pistol which hit Muhammad Amin on his right ankle. And further when on hearing the noise Kabir Khan and Muhammad Yousuf came to the spot, co-accused Nasir and petitioners Sadiq and Muhammad Yar fired with their firearms on them -but they escaped unhurt.
In the F. I. R. The place of occurrence is stated to be agricultural land of Kabir, Khan under tenancy of Jan Muhammad complainant. No enmity or motive for assault has been described in the F. I. R.
Above-mentioned Kabir Khan is real brother of petitioner Allah Diwaya and real father of petitioner Sadiq and co-accused Nasir. The learned counsel for the petitioners seeks bail of petitioners on the ground that the injuries are all simple and on non-vital parts of the body and the injured were cured and were pursuing their normal avocations. He further submitted that the complainant and his associates were also armed with firearms and occurrence had taken place in the land of the accused and that complainant party was the aggressor and as a result of their assault a buffalo of Allah Diwaya petitioner was injured and that believing the counterversion of the incident, police had arrested members of the complainant party under section 307/148/149, P. P. C. And that Kabir Khan had been granted bail by section 30 Magistrate in this case on 29th June, 1981 while bail application of Jan Muhammad had been rejected by trial Magistrate on 29th June, 1981 and 11th July, 1981 and had been granted by Sessions Judge on 21st July, 1981. He vehemently submitted that it was a case of further enquiry. The learned counsel for the State vehemently opposed the bail application and submitted that it is a case of assault by firearms in which a role has been assigned to each petitioner and it was the good luck of injured that they got only simple injuries and were hit only on non-vital parts of the body. He also submitted that alternative version of the incident was an afterthought and that it could not be given any credence to, as no person from accused party had been injured and, therefore, it was not a case of further enquiry. He further submitted that the Court was not bound to follow the ipsi dixit of the Police.
2. I have given serious thought to the above points argued before me. I have perused the police file as well. The charge against Muhammad Yar petitioner is only one of ineffective firing towards the end of the incident. So far as other three petitioners are concerned, the injuries caused by their shots are simple and on non-vital parts of the body. None of the injuries is such as was likely to cause death in the ordinary course of nature or such as could be said to be so imminently dangerous as to be likely to cause death. Prima facie, therefore, on the basis of the material now on the record, no clear case under section 307, P. P. C. Stands made out against petitioners. For such cases the normal rule is to use discretion in favour of accused persons and grant them the concession of bail. However, the more important circumstance is the existence of an alternative version of the incident charging the complainant party of having come and initiated an assault on the accused party in an open space adjoining the Basti of Allah Diwaya petitioner in which Allah Diwaya's buffalo was injured. The basic fact in this alternative version came to the notice of the investigating officer right on the first day of his reaching the spot. Occurrence took place at noon on 2nd June, 1981, F. I. R. Was lodged on the same day at 3-30 p. m. And investigating officer on reaching the spot on tile same day was informed that a buffalo of Allah Diwaya accused had been injured by firing of complainant party. The said buffalo was produced before him in an injured state and he sent it on the same day for medical examination from a Veterinary doctor who examined the buffalo and reported on 3rd June, 1981 that it had 8 firearm injuries on its body. All this happened at a time when none of the accused-petitioners or their co-accused had yet appeared before or had been arrested by police. Therefore, the counterversion of the incident prima facie does not at this stage appear to be an afterthought.
3. On 4th June, 1981, petitioners appeared before police and stated that actual facts were that Allah Diwaya petitioner had forbidden comp--lainant party from passing through his Basti and that in spite of that Muhammad Amin alias Meena of complainant party had passed through that Basti and Allah Diwaya petitioner had reprimanded him for doing so and on this, the complainant party had appeared armed at the Basti of Allah Diwaya and started firing at accused party as a result of which buffalo of Allah Diwaya petitioner had been injured.
On 5th June, 1981, number of villagers appeared before the investigate--ing officer to state that the occurrence took place in the open place adjoining the Basti of Allah Diwaya petitioner (while the Basti of comp--lainant was situated at a distance of three or four squares therefrom) and that complainant party had come armed at the spot and started firing on accused party. They further stated that there was firing by both the sides on each other. The police officer who had appeared at the hearing had also stated that according to the investigation, venue of the fight had been changed by the complainant party and that under the same F. I. R, on the basis of the alternative version of the incident, Police is challenging Kabir Khan, Jan Muhammad, Muhammad Amin and Dost Muhammad, etc. Of complainant party also. This is supported by police file which shows that police had arrested Kabir Khan on 5th June, 1981 and Jan Muhammad alias Janun (complainant), Muhammad Amin alias Meenoo and Dost Muhammad alias Dosa on 24th June, 1981. Revolver -32 bore was recovered from Kabir Khan and -12 bore shotgum was recovered from Jan Muhammad on" 1st July, 1981 and a pistol was recovered from Muhammad Amin alias Meenoo on the same day.
The counterversion of firing by complainant party is prima facie corroborated by these recoveries as well as by fire-arm injuries found on the body of the buffalo. The counterversion is thus not without foundation and cannot at ibis stage be ruled out of consideration on the mere ground that Court is not bound to follow the ipsi dixit of the Police.
4. In view of the existence of this counterversion of the incident, the position boils down to this that it is yet to be ascertained as to whether petitioners were the aggressors and had initiated the attack at the land of Kabir Khan under tenancy of Jan Muhammad or were the victims of an assault by firearms initiated by complainant party at an open place adjoining their own Basti and had fired only in self-defence. This f obviously needs further enquiry. The case of petitioners therefore, falls under subsection (2) of section 497, Cr. P. C. Which entitles them as matter of right to grant of bail.
Petitioners are, therefore, granted bail in the sum of Rs. 20,000 (rupees twenty thousand only) with two sureties each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Hasilpur.