This bail application is moved on behalf of three brothers, Ayub James, Peter and Paul sons of one Malik Mannasi, who have been charged under section 302/34, P. P. C. for causing the death of one Sarder Masih with knife blows on 8-12-1970, who remained in hospital for treatment but ultimately died on 25-12-1970. The deceased according to doctor suffered two injuries, one incised wound and the other a stab wound.
2. The second bail application of the applicant was dismissed by II Additional Sessions Judge, Karachi, by his following order dated 6-1-1972: "Heard D. C. and A. P. P. The bail is prayed on various grounds. Previous bail application was dismissed on 26/10 and since then case could not proceed further. I, therefore, do not think it fit case for bail and reject the application."
3. I have heard Mr. Nasiruddin counsel for the applicants and Mr. Jamaluddin H. Ahmad, Additional Advocate-General for the State. Counsel for the applicants submitted that the prosecution story is that Ayub and Peter only gave kicks and fists to the deceased therefore, their acts do not fall under section 302, P. P. C. or section 34, P. P. C. with regard to common intention or prearranged plan. The quarrel was sudden and unpremeditated and Paul applicant is alleged to have inflicted one knife injury only, that all the three applicants are real brothers and the whole family has been deprived of livelihood because of their being confined to jail and it is in the interest of justice to grant bail at least to Ayub and Peter if not to Paul and also that the F. I, R. was lodged not very promptly.
4. My attention was drawn by counsel for the applicants to the statement of deceased Sardar Masih recorded in the Civil Hospital wherein he states that after taking his meal in his house on the day of incident at 4 p.m. when he was taking tea he heard voice of abuses, he came out of his house and saw Peter, Paul, Ayub and Malik Mannasi standing outside his house. All the three dragged him inside of their house and bolted the door. They have jointly beaten and Paul after taking out knife assaulted him which struck him on right side of his back and caused bleeding and the two brothers Peter and Ayub and their father Malik Mannasi beat him with fists and blows, on his cries his brother E. B. Joseph came into the house and took him and released him from them. It is also stated that Malik Mannasi father of the applicant injured his brother Joseph with knife.
5. The Additional Advocate-General opposed the bail application on the ground that the applicants are implicated in the murder of Sardar Masih and grievous injuries to his brother Joseph by use of knife. The question whether they intended to murder the deceased, he argued cannot be resolved safely at this stage when evidence has to be recorded before the trial Court, still seeing to the death of one person and serious injuries to the other and the applicants' act of dragging the deceased inside the room and locking the same from inside goes to show that the fight was neither occasioned at spur of moment nor the purpose of the applicants was innocent. It was also argued that section 34, P. P. C. prima facie gathers the act of the applicants Peter and Ayub as well with regard to the murder of Sardar Masih and injuries to Joseph. It was urged that the offence is punishable with death therefore, the bail at this stage may not be granted, the applicants are about to stand their trial.
6. The deceased complainant Sardar Masih in his F. I. R, dated 8-12-1970 only implicated accused Paul as having given him knife blow on the right side. With regard to part played by Peter and Ayub, the deceased has to say this much in his F. I. R.: "Paul's brothers Peter and Ayub and their father Malik Mannasi beat me with fists and kicks". The deceased absolved Ayub and Peter with regard to knife injuries caused to his brother E. B. Joseph which, he states, were given by father of the accused persons Malik Mannasi. He complained against Paul for killing him with knife and against Ayub, Peter and Malik Mannasi for beating him with fists and kicks.
7. Admittedly all the three applicants are brothers and are confined in Jail as undertrial prisoners since August, 1970. It is evident from the order of the learned Additional Sessions Judge, dated 6-1- 72 when he rejected the second bail application that since the dismissal of the first bail application dated 26-10-1971, the case could not proceed further. The delay in proceedings of the case therefore, is very obvious. It is about one year and two months that the applicants are confined in jail and it may take perhaps a year or more for conclusion of the case before the trial Court, without going into the merits of the case prime facie it appears that actually knife blows were given by accused Paul and the grievance against Ayub and Peter is that they have given him kicks and fists blows. It has been held in Muhammad Yaquh v. State (1) that an accused is a murderer although armed with chhuri nevertheless making no use of it and alleged only to have raised lalkara, the non-use of chhuri was held sufficient to entitle him to grant of bail. The submission of counsel for the applicants that all the three accused are brothers and the only earning members of the family, have been confined in jail for more than a year, cannot altogether be ignored in the interest of justice while considering the bail application.
8. For the reasons given above I accept bail application only of Ayub and Peter and reject the bail application of Paul. Ayub and Peter are directed to be releassed on bail on furnishing surety of Rs.
15,000 each and P.R. in the like amount to the satisfaction of the learned trial Court. .
(1) 1971 P Cr. L J 106