1. ' This is a petition under sections 439 and 497, Cr. P. C. For cancellation of bail of respondents Nos. 1 to 7, namely Rehmat Khan, Ghena, Mehdi Khan, Muhammad Aslam, Qadir, Khan Muhammad and Muhammad Khan, allowed to them by the learned Additional Sessions Judgc, Gujrat by his order dated 1st March, 1982.
2. ' The case against the respondents had been registered under sections 302, 307, 148 and 149, P. P. C.
3. With Police Station, Dinga, Distt. Gujrat, on 12th October, 1981, vide F. I. R. No, 99 at the instance of one Muhammad Yusaf complainant. Notice was, however, issued in this petition to respondents Nos. 1 to 6 only.
4. ' The allegations as contained in the F. I. R. Were that on 12th October, 1981 the complainant had to go to Kharian alongwith his cousin Taja deceased and at 7 a. m. He went to the house of the latter.
5. As he reached in front of the house of Taja the latter along with his .Guest Muhammad Anwar came out when the accused-respondents alongwith co-accused Muhammad Azam reached the spot and raised lalkara. They were variously armed. Muhammad Khan had a rifle, Ghena, Rehmat and Mehdi Khan had hatchets and the remaining accused had sotas, Rehmat accused allegedly gave a hatchet blow to Taja on the front of his head. Ghena accused also inflicted a blow with hatchet on the middle of the head of Taja, whilst Qadir and Khan Muhammad accused inflicted sota blows on the back of his head. As a result Taja fell down injured. He died at the spot.
6. ' On the intervention of Muhammad Anwar, Muhammad Khan accused opened fire but it did not hit anyone. Before second shot could be fired by him Muhammad Anwar caught hold of the rifle of Muhammad Khan accused whereupon Mehdi Khan accused gave a hatchet blow on the middle of the head of Muhammad Anwar. Rehmat Khan and Ghena accused allegedly inflicted hatchet injuries on the back of his head. Muhammad Anwar also fell down and in that condition he was belaboured with sota blows by Muhammad Aslam, Qadir and Khan Muhammad accused.
7. Muhammad Khan and Azam Khan accused also allegedly gave butt blows on the head of Muhammad Anwar.
8. ' Mushtaq Ahmad and Muhammad Arif P. Ws. Also tried to intervene but Muhammad Khan accused gave a butt blow on the head of Mushtaq and Muhammad Aslam accused gave a butt blow on the left side of his face. Rehmat Khan accused also allegedly gave a hatchet blow to Muhammad Arif P. W. Thereafter Muhammad Aslam, Qadir and Khan Muhammad accused inflicted sota blow on Muhammad Arif P. W. The occurrence was witnessed by Mst. Said Begum and Sardar Khan P. Ws.
9. ' According to the Medico-legal Report, in all 31 injuries have been inflicted on the persons of the various injured and Taja deceased.
10. ' The learned counsel for the petitioner contended that with all this narration in the F. I. R. Wherein the accused-respondents have been specifically named and attributed specific roles of inflicting injuries on the deceased Taja and the injured Muhammad Anwar, Mushtaq and Arif P. Ws. There was no occasion for granting bail to them. He argued that it is the admitted position that the occurrence took place in front of the house of Taja deceased and that the assembly by the accused respondents after due meditation and variously armed does show their common intention not only of killing the deceased Taja but also other persons of the complainant party as is apparent from the large number of injuries inflicted upon them all. Continuing his arguments he submitted that the strong motive attributed to the respondents as explained in the F. I. R. Also shows the common intention of the accused-respondents to commit the crime.
11. ' The learned counsel for the petitioner further contended that the reasons advanced in the order of the learned Additional Sessions Judge, Gujrat dated 1st March, 1982 for allowing bail to the accused-respondents are based on obvious misreading of record. He submitted that the learned Additional Sessions Judge has wrongly observed that Muhammad Khan, Mehdi Khan, Rehmat Khan, Aslam, Ghulam Qadir and Khan Muhammad are stated to have injured only Anwar, Mushtaq and Arif P. Ws. And that they did not attack the deceased inasmuch as the narration in the F. I. R.
12. Goes contrary to this observation.
13. ' As regards the counter-version, the learned counsel pointed out that the same is on the basis of a complaint lodged after more than two months of the incident and obviously should not have been made the basis for holding that this is a case of further enquiry ' Similarly it was urged that the finding of the D. S. P./A. S. P., Gujrat holding some of the accused- respondents to be innocent on the basis of the plea of alibi was irrelevant for the purposes of bail.
14. ' The learned counsel for respondents Nos. 1 to 6, on the contrary, submitted that the findings arrived at by the Investigating Officer during investigation have to be given due weight and consideration while deciding the matter of bail. He further submitted that complaint having been filed by the accused-respondents as a counter-version this was a case of further inquiry entitling the accused respondents to bail especially when one of the accused also had a grievous injury. - ' The learned counsel for the contesting respondents lastly submitted that the exercise of discretion by the learned Additional Sessions Judge for grant of bail being proper should not be interfered with. The learned counsel, however, did not give any counter-argument regarding the misreading of the F. I. R. By the learned Additional Sessions Judge while observing that "Muhammad Khan, Medhi Khan, Rehmat Khan and Aslam petitioners are stated to have injured Anwar, Mushtaq and Arif P. Ws. Only. Neither of them attacked or gave any injury to Taja deceased."
15. ' The learned counsel for the State submitted that the grant of bail to the accused-respondents was wholly unwarranted. He argued that the accused respondents have been specifically named in the F. I. R., that Niaan was backed out, that no name has been given in the order of the learned Additional Sessions Judge of the persons who allegedly took oath on the Holy Quran before the Police Officials, that the occurrence having taken place near the house of the deceased shows that aggression of the respondents and that apart from the murder of Taja accused there were grievous injuries inflicted on the persons of Anwar, Mushtaq and Arif P. Ws , and that fire-arm had also been used though it was ineffective. He also submitted that the recovery of blood-stained weapons of offence from the accused-respondents have also not been considered by the learned Additional Sessions Judge while granting bail to the respondents.
16. ' Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the petitioner and the State have force.
17. It has been rightly pointed out that the allowing of concession of bail by the learned Additional Sessions Judge was not in the proper exercise of jurisdiction. There is no denying the fact that the observation which is the main basis of the order of the learned Additional Sessions Judge that "Muhammad Khan, Mehdi Khan, Rehmat Khan and Aslam petitioners are stated to have injured Anwar, Mushtaq and Arif P. Ws. Only. Neither of them attacked or gave any injury to Taja deceased" is based on utter ignorance of the averments in the F. I. R. As specific roles of infliction of hatchet blows, etc. Have been attributed to all of them as regards the person of Taja deceased.
18. ' The plea of alibi advanced by the accused-respondents in the attendant circumstances of the case cannot be given any weiaht since as many as 31 injuries had been inflicted on the persons of the complainant party which prima facie shows the presence of an unlawful assembly of a number of persons of the accused-party at the place of occurrence.
19. ' The ground of further inquiry which has been taken as another basis for allowing bail to the accused-respondents in view of the counter-versio brought about by the accused party by lodging a complaint also cannot given any weight for the reason that the complaint has been lodged afte more than two months of the date of occurrence and more so because none of the complainant party had been even summoned in the complaint a the time the bail was allowed to the accused-respondents or for that matter till date.
20. ' The fact that one person had been killed and the allegations of attempt of murder of others have been levelled in the F. I. R. Coupled with the position that the Medico-legal Report shows as many as 31 injuries o various persons made the case of a very serious nature and one of prim facie vicarious liability of the accused-respondents. The place of occurrence being also the house of the victim afforded yet another reasonable cause to refuse bail.
21. ' The accused-respondents having been prima facie shown to be connected with the crime which entails punishment of death or imprisonment for life, the case falls within the prohibitory clause of section 497, Cr. P. C.
22. ' In view of the foregoing discussion I am of the view that this is a fit case for cancellation of to respondents Nos. 1 to 6 as the concession of to them was not based on sound reasoning. Accepting this petition I therefore, cancel the to respondent Nos. 1 to 6 none of whom is present today in the Court as such action may be taken against them in pursuance of this order in accordance with law. .