' Bakhsh Ilahi petitioner, who alongwith others, is involved in a case registered under section 302/307/324/148/149, P.P.C. At Police Station Tandlianwala, District Faisalabad, vide F.I.R. No, 57, dated 2-2-1989, has applied for the grant of post-arrest bail.
2. According to the F.I.R., the prosecution case is that on 2-2-1989, at about 12 noon, Zahid Hussain complainant and his brother Ijaz deceased had parked their Rehris in Grain Market, Tandlianwala.
At that time, Mahboob Elahi alias Pappu armed with Sarya, the petitioner and his two sons Muhammad Ilahi and Mojeeb Ilahi armed with Sotas came there raising Lalkara and attacked them. Mahboob Elahi inflicted a Sarya (iron bar) blow on the head of Ijaz whereas the petitioner gave a Sota blow on his left leg, who fell down. The remaining two co-accused of the petitioner caused injuries with Sotas to the complainant. The complainant Zahid Hussain raised alarm, which attracted Khalid Mahmood, Muhammad Hussain and Muhammad Boota to the spot. The petitioner raised Lalkara that they be also killed, whereupon Jeena etc. Came there armed with sticks and they injured Khalid Mahmood, Muhammad Hussain and Muhammad Boota, aforesaid.
3. Regarding motive, it is stated that a day prior to the occurrence, a quarrel had taken place between the complainant and his brother Ijaz deceased, on one side and the accused on the other, over the parking of Rehris and they exchanged abuses, which resulted in the present occurrence.
4. The learned counsel for the petitioner raised the following points in support of this bail application for the consideration of this Court:- The ocular testimony is against the medical evidence, as in the F.I.R. It is alleged that the petitioner caused injury with a Sota on the left leg of the deceased, whereas there is no corresponding injury on the left leg of the deceased; during the investigation the police found that the petitioner was empty handed and he has not caused any injury to the deceased, hence the case against him is of further inquiry and there exists no reasonable ground to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life; the co-accused of the petitioner received many injuries on their persons which have been deliberately suppressed by the complainant while lodging the F.I.R. Hence no explicit reliance can be placed on this dubious document in which the complainant party have suppressed their highhandedness; that it is a case of free fight as there was business rivalry between the parties and it was the complainant party which was the aggressor and opened the attack on the accused party, then the latter in self-defence caused two injuries to the deceased, out of which one proved fatal, but the petitioner at the most caused the simple injury on the left leg of the deceased, even if the uncorroborated testimony of the complainant is believed at the preliminary stage; that the complainant has not taken into confidence the Court while lodging the F.I.R. And this disentitles the prosecution to say before the Court that there exist reasonable grounds to implicate the petitioner in a case of murder on the basis of vicarious liability.
' The learned counsel for the petitioner has placed reliance on the following case-law:--
(1) Ramzan and another v. The State 1979 P Cr. L J 184.
All injuries allegedly inflicted by accused simple except one--Grievous injury not attributable to petitioners but to other accused--.
(2) Ghulam Nabi etc. v. The State 1977 P Cr. L J 460.
Three persons on accused's side receiving 24 injuries during incident but such material fact suppressed in F.I.R. By complainant and deceased's death caused by a blow given by another person not filing petition for bail--Case being one of free fight between parties, each participant, held, responsible for his own act and petitioners not causing death entitled to bail.Xx xx (3)Hidayat and 2 others v. The State PLD 1985 Lah.
201.
' Accused attributed simple injury on leg of deceased-- to such accused; and
(4) Shehzad Sultan alias Bhola v. The State 1983 P Cr. L J 86.
Bail--Grant of, in murder case--Further inquiry--Petitioner receiving four injuries including two on head but none of such injuries finding mention in F.I.R. Or in statements of witnesses during police investigation--Held, case to need further inquiry because of something being kept (secret) from Court consciously presumably favouring petitioner-- in circumstances.
5. On the other hand, the learned counsel for the State assisted by the Investigating Officer, who has brought the record, has submitted that the name of the petitioner is very much mentioned in the F.I.R. Which was lodged promptly, hence the petitioner is liable for the offence of murder of Ijaz vicariously alongwith his co-accused and had the direct motive to commit the crime; rather he was the principal accused. When questioned about the suppression of injuries on the persons of the accused party, the learned State counsel frankly conceded that this has been done in the present case, because from the perusal of the F.I.R. It does not appear that the accused party received injuries in the transaction.
6. The learned counsel appearing for the complainant in this case has relied upon Riaz Rashid v.
The State 1988 SCMR 281 on the principle that the petitioner being named in the F.I.R. And had the direct motive is liable for the murder of Ijaz on the principle of vicarious liability and is not entitled to bail as there exist reasonable grounds to believe against the petitioner that he is involved in a case punishable with death or imprisonment for life. He has also raised an objection that the opinion or finding of the Investigating Officer is not binding on this Court, hence the opinion of the Investigating Officer that the petitioner was empty handed at the time of occurrence, does not improve the case of the petitioner at this bail stage.
7. I have heard the learned counsel for the parties and have perused the record carefully and minutely with their able assistance. Before embarking upon the respective contentions of the learned counsel for the parties, it would be desirable to see what is the material on the basis of which the Court while deciding bail application is to rely upon and to arrive at the conclusion that there appear reasonable grounds to believe that the accused person is guilty of an offence punishable with death or imprisonment for life. At the time of deciding the fate of bail application, usually the Court is in possession of FIR. Statements of the witnesses recorded under section 161, Cr.P.C. And any other material i.e the circumstantial evidence collected during the course of investigation. On the basis of this, the Court has to find out whether there appear reasonable grounds for believing that an accused person is connected with the offence which is punishable with death or imprisonment for life. Applying this principle of law, I find, prima facie, in the facts and circumstances of the present case, the F.I.R. Stood negated by the medical evidence, because there is no injury on the left leg of the deceased caused with Sota, whereas according to the F.I.R. It has been specifically mentioned that the petitioner caused an injury to the deceased on the left leg. The complainant has deliberately suppressed the material fact such as injuries received at the hands of the complainant party by the accused party at the time of the alleged occurrence, which makes the prosecution case prima facie further doubtful so far as the role attributed to the petitioner is concerned. The finding of the police that the petitioner was empty handed at the time of occurrence creates further doubt in the prosecution version and the case-law relied upon by the learned counsel for the complainant that an accused person will be vicariously liable would not be attracted to the circumstances of the present case, as there is reasonable possibility that the fight might have erupted all of a sudden and it is a case of free fight in which every participant prima facie would be liable for his individual act. Applying the principle of free fight depending upon the attending circumstances, I find that the case against the petitioner is of further inquiry, and the petitioner is entitled to bail at this stage. I, therefore, admit the petitioner to bail in the sum of Rs,50,000 (fifty thousand only) with two sureties each in the like amount to the satisfaction of the A.C. (City) Faisalabad.