This order shall dispose of Cr. Misc. Nos. 2800/B of 1973 which is bail application by Fazal Muhammad in a case under section 302, P. P. C. And Cr. Misc. No. 3043/13 of 1973 in which suo motu notice was given by me to Farid accused in the counter case to show cause why the bail granted to him by Mr. Ausaf A.I Khan, Sessions Judge, Rahimyar Khan on 20th of June, 1973, should not be cancelled. My order dated 11th of July r973, passed in Cr. Misc. No. 2800/B of 1973 shall be read as a part of this order.
2. It has been urged on behalf of Fazal Muhammad petitioner that the occurrence took place in the land belonging to the petitioner and his brother and that the complainant party had come there with aggressive designs. It is pointed out that Fazal Muhammad had suffered two contusions on his back whereas his brother Sharif had suffered three injuries on his back. The in--juries to these two persons bad been caused with blunt weapon. Mr. Ahmad Khan, who appears as one of the counsel for the petitioner, tells me that one of the injuries cased to Muhammad Sharif was found to be grievous on the basis of the X-Ray examination. It is also pointed out that Mst. Perveen another daughter of Muhammad Sharif bad also suffered injuries. The learned counsel vehemently argues that the death of Mst. Maqsudan at the bands of Farid and the injuries caused to Perveen. Fazal, petitioner and his brother Muhammad Sharif were not deposed to in the first information report.
This, according to him, amounts to suppression of material facts and indicates that the first informant had not told the whole truth before the police. It is further submitted that the injuries both on Fazal Muhammad and Sharif are on the back which show that they were injured while they were running or had their backs towards their assailant/assailants. The case set up in the complaint filed by Sharif is that of self-defence and it is stated therein that when Fazal Muhammad was being pursued and given injuries, he turned round and gave a blow to the deceased, Arat, with a weapon which resembled a spear.
3. It is also submitted that the petitioner was arrested on 14th of January, 1973, and during this period of over ten months only five out of thirteen witnesses have been examined. It is further said that no witness has been examined in. The complaint case and the completion of inquiry of both these cases may take a long time.
4. While I do not express any opinion on the plea of self-defence raised by the -accused, which will of course be decided by the court concerned, I find that there has been abnormal delay in this case and the inquiry may take further time to come to an end because of the fact that complaint case has not yet started. There is no rebutting of the assertion of the learned counsel that the injuries caused to Sharif, Fazal Muhammad and Kist. Perveen were suppressed and death of Mst.
Maqsudan was not deposed to by the first in. Formant. I would, therefore, in the circumstances direct that the petitioner, Fazal Muhammad, in Cr., Misc. No. 2800/B of 1973, be released on bail in the sum of Rs. 15.000 (Rupees fifteen thousand) with two sureties in the sum of Rs. 7.500 each to the satisfaction of the Assistant Commissioner Rahimyar Khan.
5. Now I would deal with the notice issued to Farid. Mr. Saeed Hasan Malik has appeared on his behalf. He has read out to me certain portions of the challan filed in court against Farid under section 304, P. P, C. And has also made reference to the complaint filed by Muhammad Sharif. It is his case that Fazal Muhammad was running away after giving a fatal injury to Arat and he was being pursued by Farid who according to him had a legal right to arrest him. It is argued that the interference on behalf of Mst. Majeedan the sister of Fazal Muhammad in whose lap the child Maqsudan was killed, amounted to obstruction in the performance of public duty cast on Farid in arresting a person who bad committed a cognisable offence in his presence. It is further argued that he had no intention to commit the murder of Maqsudan.
6. I have seen the challan and I find that even in the statement attributed to Mst. Majeedan in the challan filed against Farid, there is no mention of any injuries caused to Perveen another daughter of Sharif: It is also not known on what ground the charge under section 304, P. P. C. Was levelled against Farid. The order of the learned Sessions Judge granting bail to Farid has been read out to me and the only reason given, ny him appears, to be that whereas according to the police Farid was guilty under section 304, P. P. C. The complainant, said that he along with nine others was guilty under section 302, P. P. C. This difference of opinion between the com--plainant and the police appears to have influenced the learned Sessions Judge into coming to the conclusion that this was a case which was to be further enquired under subsection (2) of section 497, Cr. P. C. So far as the factual t assertion of Mr. Saeed Hasan Malik is concerned, there is no mention of the fact in the challan filed against Farid that Fazal Muhammad was running away after causing fatal injury to Arat and it was as that time that his sister intervened in the pursuit which was being carried out by Farid. In para. 3 of the complaint, it is said that after injuries had been caused to Sharif, Fazal Muhammad took to his heels but was pursued and attacked by Arat and it was at that time that he turned round and gave a barchhi blow which proved fatal. The factual contention of the learned counsel, therefore, that the occurrence took place when Farid pursued Fazal Muhammad in order to arrest him, is not borne out by the documents before me. In my view, the learned Sessions Judge was not justified in granting bail to Farid. I, there--fore, cancel the order dated 20th of June, 1973, passed by the learned Sessions Judge, Rahimyar Khan granting bail to Farid. He shall surrender to his bail bonds.