This is an application for bail on behalf of Sher Muhammad, Bahadur and Allah Yar petitioners in a case under section 302/34, P. P. C. Registered at Police Station, Sahuka on 4th January, 1.980.
The allegations are that the petitioners in furtherance of their common intention had caused the death of Muhammad Yar on 4th July, 1980 at 1.00 or 2.00 a. m. In the house of Allah Yar petitioner situate in Chak No. 49/K-B of village 40. It is alleged in the F. I. R. That Allah Yar petitioner No. 3 caught hold of the deceased and the petitioners namely, Sher Muhammad and Bahadur, inflicted danda blows on the person of the deceased.
2. Learned counsel for the petitioners submits that Sher Muhammad petitioner and his wife Mst.
Karam Elabi were sleeping in their house. At about 2 a. m, Sher Muhammad petitioner got up to urinate and found his wife Mst. Karam Elahi missing. He searched for her and found Muhammad Yar deceased in compromising position with her and it was on grave and sudden provocation that he inflicted sota blows on the legs of the deceased. He contends that the plea of grave and sudden provocation finds support from the following circumstances
(i) Motive.-It is alleged in the F. I. R. That Sher Muhammad petitioner and others were suspecting the deceased of having illicit relation with Mst. Karam Elahi, wife of Sher Muhammad petitioner-; and
(ii) the time and place of occurrence that the deceased was injured at 1.00 or 2.00 a.m. In the house of Allah Yar petitioner.
3. As against this, the learned Assistant Advocate-General submits that the contentions of the learned counsel for the petitioners are based on conjectures and surmises. He further submits that the seat of injuries i.e. On the legs negatives the existence of grave and sudden provocation. He submits that had Sher Muhammad seen his wife in a compromising position with the deceased then he would not have chosen .The legs as the target. He argues that it is a case of pre-planned murder.
4. I have considered the arguments of the learned counsel for the parties. I find that the plea of grave and sudden provocation as stated by the learned counsel for the petitioners was not raised during the investiga--tion and there is nothing on the record to support the plea except the two circumstances as pointed out in para. 2 of this order which in my mind are not sufficient to hold that Sher Muhammad alone on seeing the deceased in compromising position with his wife had done away with him. The matter requires deep appreciation which is not desirable at this stage.
Since Sher Muhammad and Bahadur allegedly have caused injuries to the (deceased, in my opinion they are not entitled to bail.
The case of Allah Yar is, however, distinguishable. He did not cause any injury to the deceased. The allegation against him is that he was catching hold of the deceased at the time of occurrence. The question of his vicarious liability in the circumstances of the case, therefore, needs further inquiry.
The upshot of the discussion is that the application to the extent of Sher Muhammad and Bahadur is rejected, whereas Allah Yar is allowed bail in the sum of Its. 20,000 (rupees twenty thousand) with one surety in the like amount to the satisfaction of A. C./DutyMagistrate, Vehari.