' On 7-11-1988 at 9-30 p.m. When Riasat Ali the son of Nawab Din complainant, a peon in the Court of Tehsildar, Kabirwala, was sleeping in the house of Tehsildar, Altaf Hussain and Muhammad Akhtar petitioners trespassed into the house and, after removing Rs,800 from the pocket of the shirt of Riasat Ali, which stood hung on the peg in the room were about to walk out, he woke up and confronted them. Muhammad Akhtar petitioner thereupon gave him a knife blow on his head followed by Altaf Hussain petitioner who gave him a Sota blow on his neck. He raised alarm attracting Muhammad Hanif and Mehboob Elahi P.Ws. Seeing them coming, the petitioners, who were also accompanied by an unidentified person, fled away. Nawab Din, the father of the injured, came there and took him to the hospital and after obtaining medico-legal report lodged a report with the police which registered a case against the petitioners under section 458/380/324/34, P.P.C. The petitioners were arrested during the same night and after having remained unsuccessful in the Court of Magistrate and then in the Sessions Court in obtaining bail, they have come to this Court.
2. It is argued on behalf of the petitioners that the third person was not known to the witnesses, including the injured P.Ws., and the proper course for the police was to get that person properly identified by them in an identification parade to be arranged by the Magistrate but without following this procedure Khalid alias Mohli petitioner was apprehended. It is further urged that no overt act was attributed to the third person during the course of occurrence and the idea was to leave a scope for, the implication of a third person according to their whims.
3 With regard to Altaf Hussain and Muhammad Akhtar petitioners, the learned counsel submits that it is not clear from the F.I.R. As who between them had taken out the money from the pocket of the shirt and the matter was reported to the police after three hours of the incident despite the fact that the police station was located at a distance of, hardly one furlong from the place of occurrence. According to the learned counsel, the real story behind this case is that a piece of land belonging to Altaf Hussain, attached to Darbar Pir Kabir in Kabirwala Town, is subject of dispute between Nawab Din complainant and Bahader, the father of Muhammad Akhtar petitioner, and a civil suit between them is pending in the Civil Court at Khanewal as both of them are interested in obtaining lease of that land and since Riasat Ali injured P.W. Happened to be the peon of Tehsildar, he cooked up this story and wanted to pressurise the father of Muhammad Akhtar petitioner to give up his claim in his favour and since Varyam, the father of Altaf Hussain petitioner, is a witness of Bahader in that suit, his son too has been roped in. Finally, it is urged that all the three petitioners re teen-agers and being previous non-convicts, they are entitled to the grant of bail.
4. The application has been opposed on behalf of the prosecution on the ground that the enmity between the parties stands established by the contentions of the learned opposing counsel and since enmity is a double-edged sword, it can also be a reason for the commission of crime.
According to the learned State counsel, the petitioners armed with deadly weapons committed lurking house trespass and caused injuries to Riasat Ali on a vital part of his body, particularly when the Tehsildar was away from his house in connection with election duty and Riasat Ali was watching his house.
5. Abdur Rehman S.I. States that he had investigated this case but did not examine the Tehsildar in whose house the occurrence took place. He has not been able to plausibly explain his omission to examine and cite him as a witness. He has also not been able to explain as to why he did not arrange the identification parade of Khalid alias Mohli petitioner before arresting him and sending him up as a co-accused. It appears that he has not properly investigated this case.
6. In these circumstances, Khalid alias Mohli petitioner is granted bail if he furnishes bail bonds in the sum of Rs,10,000 with one surety in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Kabirwala.
7. The bail application of Altaf Hussain and Muhammad Akhtar petitioners shall be decided after hearing the Tehsildar in whose house the incident allegedly took place. He should be summoned for 21-2-1989. To come up on 21-2-1989.
The Tehsildar states that the incident had taken place in his house in his absence as at that time he was on election duty at Khanewal but when he returned to his house late at night at about 2 a.m. He found blood spots lying in the Verandah and he was told about the incident by Rashid Ahmad, another peon, as at that time Riasat P.W. Was not available, having already been removed to hospital in an injured condition. He further states that he summoned Nawab Din, the father of Riasat injured, and he narrated the incident and told him that having come to the house attracted by the noise, he removed his injured son to the hospital and got the case registered. He submits that early in the morning he again went to Khanewal for duty. He adds that there was some land dispute between the father of Riasat peon and father of Muhammad Akhtar petitioner.
2. The facts of the case and the arguments of the learned counsel representing the parties stand already incorporated in detail in my preceding order and need not be repeated. From the statement of the Tehsildar it appears that incident did take place in his house and it cannot be said that it is altogether a false case engineered by the peon of the Tehsildar against his opponents. Apparently it was a lurking house trespass at night and Riasat, who was looking after the house of the Tehsildar in his absence, was injured. In ..Hese circumstances, Altaf Hussain and Muhammad Akhtar petitioners are not entitled to the grant of bail and their bail application is rejected.
3. However, since the occurrence took place in the house of Tehsildar, who is a local officer, it would be in the fitness of things if the case is tried at some different place by a judicial officer not connected with the local executive. It is therefore, transferred from the Court of Assistant Commissioner/Magistrate 1st Class, Kabirwala, where it is said to be pending, to the Senior Civil Judge/Magistrate Section 30, Khanewal, who shall decide it before the month of March next is out, failing which the petitioners shall be released on bail by him.