' This is a petition for bail filed in a case registered against-the petitioners under section 148/323/342/307/149, P.P.C. at Police Station, Rabwah, District Jhang on 26-6-1984. This case was registered on the statement of Molvi Allah Yar Arshad (hereinafter called the complainant) at 1-45 a.m on 26-6-1984 in respect of an occurrence which is alleged to have taken place on 25-6-1984 at about 11 p.m.
2. The case set up in the F.I.R. is that the complainant was on his way to Masjid Ahrar to attend 'Mehfl-e-Shahbena' on a cycle and when he reached near the grinding machine of Abdul Haq on Sahiwal Road, a few Qadianis started chasing him and when he reached near Degree College, one of the Qadianis chasing him struck his cycle against the cycle of the complainant who fell down to the ground. When he got up Wasim petitioner caught hold of him from his neck and gave him a push. Mubarik Ahmad petitioner caught hold of his beard and 15 other Qadianis who were not known to complainant and were armed with Lathis and hockey's came there. Mubarik Ahmad petitioner who had a pistol in his hand held the complainant from his beard and placed the pistol on the chest of the complainant who raised an alarm but his mouth was gagged with his handkerchief and his arms and feet were also tied and they all dragged him towards a Mohallah on the eastern side saying that he should be taken to the same house wherein the other Molvi has been confined and he be also dealt with in the same manner. Thereafter the complainant was made to smell something as a result of which he became unconscious and when he came to senses he found himself in a house where he saw Hakeem Khurshid Ahmad, Zahoor Ahmad Bajwa, Khawja Majeed and Abdul Majeed Bhambri (whose actual name is Abdul Aziz) petitioners Nos. 1, 2, 3 and 6, respectively and some other Qadianis. Hakeem Khurshid asked his companions that the complainant be shown the other Molvi so that he should know the fate of those who speak against the Qadianis. Abdul Majeed petitioner told his companions to bring a chopper and to start chopping the complainant from his feet. Hakeem Khurshid petitioner has been giving him kicks as a result of which complainant started bleeding from the nose. Thereafter complainant was given beating by Abdul Majeed Bhambri, Wasim Ahmad and Zahoor Ahmad petitioneRs, At this stage, some one exclaimed that police had arrived whereupon it was said that the complainant be thrown out of the Kothi. The complainant was again made unconscious by making him smell something and when he regained the consciousness, he found himself lying outside the Kothi where police men and Qadianis were standing.
' The motive stated in the F.I.R. is that the complainant has been subjected to torture and physical violence because he is preacher of 'Khatm-e-Naboovat' and represents Muslims of Rabwah.
3. Petitioners Nos. 1 to 5 who were arrested in the aforesaid case moved an application for the grant of bail before the learned Sessions Judge but the same was dismissed by order, dated 11-7-1984.
They then filed a bail petition in this Court (Criminal Miscellaneous No, 1967 of 1984) and petitioner No, 6 also moved a pre-arrest bail application (Criminal Miscellaneous No, 2077/8/84). Both these petitions were dismissed by me on 2-8-1984 in view of the statement made by the learned Assistant Advocate-General that D.M.L.A., Sargodha had taken cognizance of the case. Petitioner No, 6 thereafter is stated to have surrendered himself before Military Court No, 76, Faisalabad and he was taken into custody and sent to judicial lock-up. Martial Law Authorities vide a letter dated 11-8-1984 (Annexure 'A/1') sent the case back with the direction that it should take its normal course.
All the six petitioners have now filed the present petition for bail.
4. Mr. Aziz Ahmad Bajwa, learned counsel for the petitioners has submitted that the version given in the F.I.R. is untrue and the correct position is that on the night intervening 25/26th June, 1984 at about 11 p.m. petitioners Nos. 4 and 5 were present on the roof of the Bungalow of Qureshi Muhammad Afzal who had gone abroad. They noticed the smoke coming from below. They rushed down and saw three persons, who had set the house on fire. Two of them ran away but they caught hold of the third namely, Molvi Allah Yar Arshad, the complainant. They also found a can of oil and broken bottle lying nearby. Police was informed about this occurrence on telephone. Petitioners Nos. 4 and 5 were taking the complainant to Police Station when the police party met them on the way and they handed over the complainant to the police. Mubarik Ahmad petitioner gave this information in writing to S.H.O., copy of which has also been placed on this record. The S.H.O. instead of registering the case against the complainant and his two companions registered a case against the petitioners on the allegations mentioned in the F.1.R. Learned counsel has further submitted that telegrams were sent to S.H.O. and other higher authorities seeking registration of the case against the complainant and his companions but no action was taken and consequently Writ Petition No, 2949 of 1984 has been filed in this Court which is still pending.
5. Learned counsel has further contended that on the allegations made in the F.I.R. and in view of the fact that all the injuries suffered by the complainant are simple, most of which are on non-vital parts of the body, case at the most falls under section 323, P.P.C. and not under section 307, P.P.C.
According to the learned counsel, the nature and dimension of the injuries so also the fact that Mubarik petitioner who allegedly had a pistol with him but he did not fire at the complainant negate the intention to kill. It is further contended that the injuries even on the vital parts of the body of the complainant have not been specifically attributed to the individual petitioners with particularity. Learned counsel has also submitted with reference to the letter of D.M.L.A. (Annexure 'A/1') that the case was studied in depth at Headquarter D.M.L.A., Sector-2, Sargodha and it was found that it was a case of trivial nature and was therefore, sent back so that 'it should take its normal course'.
6. Learned counsel has further argued that even if this case falls under section 307, P.P.C., while considering the question whether the case falls within the prohibition contained in subsection (1) of section 497, Cr.P.C. Courts are not supposed to keep in view only the maximum sentence provided under the relevant law and that if in a particular case it can be shown, even at the bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition and the Court would then have the jurisdiction to grant or refuse bail in exercise of its discretion. Reliance for this proposition has been placed on Amir v. The State 1973 P Cr. L J 205. Learned counsel has submitted that even in the event of the petitioners' conviction under section 307, P.P.C., there is no possibility on the facts and circumstances of this case of the maximum sentence of 10 years provided for the offence being awarded. That being so, the prohibition contained in subsection (1) of section 497, Cr.P.C. does not apply. Learned counsel for the petitioners has also relied upon Mahabat Khan v. The State 1983 P Cr. L J 2142, Muhammad Tufail v. The State 1983 P Cr. L J 2148 and Azhar Hussain and others v. The State 1983 P Cr. L J 2154. In Mahabat Khan's case it was held that the question whether the offence, if any committed falls within the ambit of section 307 or 324, P.P.C. needed further enquiry and the bail was allowed. In the case of Muhammad Tufail, bail was allowed to the accused in a murder case in view of the accusation that "the petitioner although alleged to have been armed with a gun did not fire at the deceased with whom he had direct motive" and it was held that looking at the nature of the accusation, matter required further enquiry. In Amir Hussain's case bail was allowed to the accused charged under section 326/324/148/149, P.P.C. in view of the fact that the injuries on the persons of the injured P.Ws. except one (grievous) "have been declared simple and the grievous injury has not been specifically attributed either to Farid Hussain or Baqar Hussain". In this case it was also held that the case was one of further enquiry.
7. Malik Mahmood Majeed, Advocate, appearing for petitioner No, 6 has submitted that his client was in Quetta at the relevant time and when he came to know of his involvement in the instant case he got his pre-arrest bail from the learned Sessions Judge, Quetta on 3-7-1984. He has further submitted that in view of the counter-version set up on behalf of the petitioners, it was a case of further enquiry and as such the petitioner is entitled to bail. He has also submitted that the petitioner is aged about 65 years, is diabetic and suffers from heart trouble.
8. Mr. Farooq Bedar, learned Assistant Advocate-General appearing for the State vehemently opposed the bail application. He has submitted that the petitioners caused 15 injuries to the complainant, 5 out of which are on the vital parts of the body and that on the facts and circumstances stated in the F.I.R. petitioners clearly intended to kill the complainant and if the police had not arrived, they would have carried out their intention. He has further submitted that the complainant's version is supported by Muhammad Sadiq and Noor Muhammad who were the eye-witnesses of the occurrence and whose names have been mentioned in the F.I.R. He has also submitted that the counter-version set up by the petitioners has been gone into by the police and found false. As regards the plea of alibi set up by petitioner No, 6, it has been submitted by the learned Assistant Advocate-General that as per investigation record no such plea has been taken before the police.
' In reply to the points raised by the learned Assistant Advocate-General, learned counsel for the petitioners have submitted that petitioner No, 6 had no opportunity to advance the plea of alibi before the police.
9. I have given my anxious consideration to the aforementioned submissions made by the learned counsel for the petitioners as also by the learned Assistant Advocate-General. I do not want to express any opinion on the merits of the case, lest it prejudices the case of any of the parties. It may be pointed out that writ petition filed by the petitioners seeking registration of the case on the basis of their counter-version is still pending in this Court. I also do not want to go into the question as to whether the offence alleged to have been committed by the petitioners falls under section 307 or 3235P.P.C. It is for the trial Court to decide such questions on the basis of evidence led before it. Suffice it to observe for the present, that the fact that all the injuries suffered by the complainant are admittedly simple and the fact that Mubarik petitioner though armed with a pistol did not cause any injury to the complainant with that weapon coupled with the circumstance that a counter-version was set up on behalf of the petitioners at the earliest possible opportunity furnish ground of further enquiry. However, I also find force in the submission made by the learned counsel for the petitioners that even if the petitioners are ultimately convicted under section 307, P.P.C. there is a possibility that in view of the facts and circumstances of this case and particularly the nature and dimension of the injuries that they may not be awarded the maximum sentence provided for the offence and that being so, the case goes out of the prohibition contained in subsection (1) of section 497, Cr. P.C. with the result that the matter of grant or refusal of bail rests in the discretion of this Court. Considering the case from this angle and keeping in view the well- known principle of law of bail that when th case does not fall within the prohibition and it is discretionary with the Court to allow or withhold the bail, former is to be treated as a rule and the latter an exception, I feel persuaded to allow the bail in this case for the reasons aforementioned as also on the added ground that as per the letter (Annexure 'A/1') this case was "studied in depth" by Headquarter D..M.L.A. Sector 2, Sargodha and a finding was recorded that it is a case of trivial nature. Investigation has els been completed and the challan has since been submitted in Court with the result that the petitioners are no more required for the investigation.
10. For the foregoing reasons, this petition is allowed and the petitioners are admitted to bail in the sum of Rs,50,000 (Rupees fifty thousand only) each with one surety each in the like amount to th' satisfaction of Deputy Registrar (Judicial) of this Court.