. Sma noiltrJok;OICI 5if I PetiiiOn-ei..Ra'shid alon'gvi;iiii'his brother I3-aqirVitd'oihir 'were i tried under section 363/366/376/382/148/149, P. P. C. Afterti 'e trial, Rashid petitioner has been found guilty only of an offence under 'section 363, P. P. C. And sentenced to five years' R., I. And a fine of Rs, 1,000 or- in default to suffer further six months' 'IC-I.-He has filed the appeal and '44-so applied for bail. .1p004 luol P,, LAI
2. Learned counsel for the petitioner contended that besides the delay of eight days in the lodging of the report, the petitioner was not liable to be sentenced under section 363i, p,, P. C, because by the time Mst. Shahnaz allegedly came to meet the petitioner, she had already left and was out of the custody of her parents. Learned counsel relied on PLD 1967 SC 363. Contention of the learned counsel for the petitioner further is that the petitioner could not have been convicted under section 363, P. P. C. Because on the similar charm bis, co-accused have already beenc9uitted by the trial Court.
3. The submissionsmade prima fack appear to have force. In this view of matter, the petitioner is allowed bail in the sum of Rs, 10,000 (Rupees ten thousand only) with two sureties in the like amount to the satisfaction of.,Ang..,Stk,wa.17ti orN, Iii ii I , M v. 11,-.#06-E bib OIS'Attlitya I! 11 511I 10 MO :.:SenteOce sYspended. : yd bfmvoa ion1_,)
61 nEril ez5I 1984 P Cr. L 5 1138 (2) :)`i i,.A .D ,-(1 .q mil lo P8 I is, bolliim ion ?! n& 10"els6,1 - [Lore] A to ty5;.1i.r.y.,a; an Lsrp bollI54 lbw 7.Ns sirrimoo oi .?Dincil !' before Alltahnia'rpAt.Rigii to "iistri r. Us lizd of ot -1-,inr.:itovi ,,it tr r.f.r. . . 1 ,.,:4;! --r SARDAR MUHAMMAD alias $ADDO AND ANOTHER-Petitioners ifi ,,..,. . . Versus .,1,,, 16 1 11. THE STATE--ReSROntIent 1 '.Lif 'mit 53id"swis-tq 01dadzinug ,i , _. , t -...),)e..o.t,.. filtn1154TO n' ,) SW. o :313a*to {{BLURR}} Criminal Miscellaneous No, 466-B'' 191,' itetidedicon 16th June, 1981. 4l rut f,i;tninsilail Criminal Procedure Code (V of 1898)- ---S. 497/498 and Penal Code (XLV of 1860), S. 302/34-Bail-Which of two petitioners caused injury- Difficult to say-Whether injury could be caused by fist blows to be considered at trial-Delay in lodging of F. I. R. Significant-Occurrence taking place all of a sudden and no weapon of offence used-Case of petitioners covered by subsection (2) of S. 497, Cr. P. C. In circumstances of case-. [p.
1140]A Muhammad Bashir Khan for Petitioners.
Shahid Latif for the State.
' Sardar Muhammad and Khadim Hussain petitioners were arrested by the police in case F. I. R. No, 189, dated 26th August, 1980 registered under section 302/34, P. P. C. At Police Station, Kehror Pakka.
They applied for bail but their application for bail was rejected by the learned Additional Sessions Judge, Multar, vide order, dated 10th March, 1981. The petitioners have now submitted the present application for bail in this Court.
2. The facts of the case as disclosed in the F. I. R. Which was lodged by Muhammad Sharif complainant on 26th August, 1980 at 3-25 a. m. Are that his sister's husband Muhammade,Ramzan was asleep outside his house when at about 11.00 p. m. The complainant woke up on hearing some noise. He saw that the petitioners were quarrelling with Muhammad Ramzan when the latter had asked them why they had thrown pieces of brickbats on him while he was asleep.. The complainant also saw a tractor and a trolley loaded with earth standing nearby with its driver Dost Muhammad sitting in the driver's seat. Muhammad Ramzanathreatened the petitioners that he would complain to their master about4heir conduct and would request him to dispense with their services. Whereupon Khadim Hussain petitioner abused Muhammad Ramzan deceased while Sardar Muhammad petitioner gave two fist blows on the neck of the ,deceased. Khadim Hussain also stepped forward and he too, after lifting Muhammad Ramzan threw him headlong on the ground. He became unconscious and was removed to the house in an injured condition by the complainant where he was given medical treatment privately. On the night between 25th/26th August, 1980 Muhammad Ramzan succumbed to the injuries at about 10/11 p. m. The complainant lodged F. I. R. At 3.25 a. m. On 26th August, 1980 at Police Station, Kehror Pakka.
3. The petitioners have prayed for bail on the grounds that the report was not made to the police promptly ; that the occurrence took place during the night ; that the presence of the complainant and Ghulam Hussain P. W. At the place of occurrence was doubtful as they are not residents of the village where the occurrence took place ; that the eyewitnesses are closely related to the deceased ; that the petitioners did not use any weapon of offence and even according to the complainant's statement as recorded in the F. I. R. The occurrence had taken place all of a sudden and that it was not a case of pre-planned murder.
4. Learned counsel appearing on behalf of the State has opposed the petitioner's bail.
5. I have considered the arguments of the parties' counsel. Petitioners were carrying earth in the trolley on the night of occurrence when they saw deceased Muhammad Ramzan sleeping on a cot at a place from where they had to take the tractor and the trolley. In order to arouse him from sleep the petitioners threw some small pieces of brickbats on the deceased which led to an altercation between the petitioners and the deceased. It is evident from the aforementioned facts that the petitioners had no or grouse against Muhammad Ramzan on account of which they might have committed his murder. The fact that none of the petitioners was carrying any weapon with him when Muhammad Ramzan was allegedly assaulted by them, also supports the above inference. It was on account of the quarrel which ensued between the petitioners and the deceased that the latter received fatal injuries. According to the post-mortem report Muhammad Ramzan died on account of injury on the sixth cervical vertebrae. It is difficult at this stage, to say as to which of the two petitioners had caused the aforementioned injury because according to the prosecution version Khadim Hussain petitioner had thrown the deceased headlong on the ground but surprisingly no injury on the head of the deceased was found by the doctor at time of post- mortem examination. Whether the aforementioned injury could be caused by the two fist blows given by Sardar Muhammad petitioner on the neck of Muhammad Ramzan deceased, would be considered at the trial in the light of the opinion of the Medical Officer. Delay in lodging the F. I. R. Is also significant in this case as it tends to support the petitioner's contention that Muhammad Ramzan deceased was not attacked with the intention to commit his murder and it was for that reason that the complainant had not considered it necessary to report the matter immediately to the police and had preferred private medical treatment to the deceased at his house. It was only after the death of Muhammad Ramzan that the complainant was left with no choice but to report the matter to the police.
6. Keeping in view the medical evidence and the fact that from the narration of the complainant in the F. I. R. Muhammad Ramzan's death had not occurred as a result of a pre-planned murder, a case for petitioners' bail is made out as it is covered by subsection (2) of section 497, Cr. P. C. The petitioners are accordingly admitted to bail on their furnishing bail bonds in the sum of Rs, 30,000 (Rupees thirty thousand) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Lodhran.