1. ' Pazal Dad and Fazal Karim who are father and son, respectively, are facing trial under section 5, Islamic Penal Laws Act, in the District Criminal Court, Kotli. They were refused bail by the said Court vide its order dated 4th July, 1982 and feeling aggrieved of the same they have now approached this Court for their release on bail, pending decision of the case.
2. ' Briefly stated the prosecution story is that Fazal Dad, petitioner had become inimical towards Mst.
3. Afsar Jan, P. W. On account of some dispute over the claim of land which she had inherited from the estate of her maternal grand-father. The said petitioner also harboured grudge against Jehandad deceased as he thought him to be supporter of Mst. Afsar Jan. On 13th August, 1981, at about 10. a. m, Fazal Dad petitioner started cutting grass from the field owned by the aforesaid woman and when he was asked to desist from doing so by her, he started beating her. On her raising hue and cry, his son, Binyamin, the complainant, who was somewhere near the place, came on the spot to rescue his mother from the clutches of the petitioner. The petitioner also started beating him whose cries for help attracted his brother-in-law, Jehandad deceased to the scene of occurrence. The complainant, somehow, managed to secure his release from the petitioner and came to Jehandad but the petitioner followed him there and caught hold of Jehandad deceased.
4. Meanwhile, Fazal Karim, petitioner came there from his house, armed with a Seroo' of the cot with which he inflicted a blow on the head of Jehandad deceased who, after some time on the same day, succumbed to the injury so caused, in the Mirpur hospital.
5. ' I have heard the learned counsel for the parties and also perused the record of the case. The learned counsel for the petitioners has argued that in the facts and circumstances of the case, it cannot be said at this stage that Fazal Karim, petitioner had the intention to cause the death of Jehandad by inflicting a blow with a piece of wood on his head and, as such, there are no reasonable grounds for believing that he has committed an offence punishable with death or life imprisonment thereby bringing his case within the prohibitive clause of section 497, Cr. P. C. On behalf of Fazal Dad, petitioner, it is contended that there was no ground, whatsoever, available to the trial Court to refuse bail to him because he is not responsible for causing any injury to the deceased nor any overt act is attributed to him, during the course of occurrence. The learned counsel for the State has opposed this application on the ground that the petitioners' right to concession of bail is debarred under the law as one of them is accused of causing death of a person while the other is responsible for providing help to him in the achievement of his object by catching hold of the deceased.
6. ' After giving my anxious consideration to the arguments addressed at the bar by the learned counsel for the parties and taking into consideration the facts and circumstances of the case, I am of the opinion that in the matter of bail the petitioners do not deserve equal treatment as their cases stand on different footing from each other. So far as Fazal Dad petitioner is concerned, on the record there exists no reasonable ground to believe that he is guilty of an offence for which grant of bail is prohibited under the law. From the contents of the F. I. R. And the statements of the eyewitnesses recorded by the trial Court, it does not appear that he took any part in the commission of an offence which is the subject of trial or rendered any help or facility to the other petitioner in causing death of Jehandad. The only allegation against him is that while he was catching hold of Jehandad deceased, Fazal Karim, petitioner came on the spot from his house and inflicted a blow with the Seroo' of the cot which he was carrying with him, on the head of the deceased which resulted in his death. It is on the record that when he caught hold of the deceased, the other petitioner was not at all present there who all of sudden reached the spot from his house and caused a fatal injury to Jehandad deceased. There is no allegation against Fazal Dad, petitioner that he had called his son on the spot nor any act is ascribed to him which may suggest that he, in any way, helped or encouraged the other petitioner in the commission of offence. For the reasons stated above. Fazal Dad, petitioner is entitled to the concession of bail during the pendency of the case and thus, the trial Court has not exercised its discretion judiciously and in accordance with the settled principles of law enunciated by the superior Courts of Pakistan and Azad Kashmir, in the matter of bail, to the accused person by refusing' bail to him.
7. ' As regards the case of Fazal Karim, petitioner, there appears no good ground for interference in the discretion exercised by the trial Court in refusing bail to him. From the record, prima facie, it appears that he, without any sort of provocation on behalf of the deceased, has caused his death by inflicting a blow on such a vital part of his body as head with such a weapon of offence that a man of ordinary prudence had the reasons to believe that his such act was likely to result in the death of the victim. In this view of the matter, prima facie, there exist grounds to believe that Fazal Karim, petitioner has committed an offence which is punishable with death thereby disentitling him to freedom on bail in view of the provisions of section 497 (1), Cr. P. C.
8. ' For the foregoing reasons, Fazal Dad, petitioner is released on bail subject to his furnishing bail bond in the sum of Rs, 50,000 with one surety in the like amount, to the satisfaction of A. D. M., Kotli.
9. The application of Fazal Karim, petitioner stands rejected.