MIAN NAZIR AKHTAR, J.- The petitioner seeks bail in a case registered against him and others vide F.I.R. No 243/93 Dated 14.8.1993 u/Ss 302/324/148/149 P.P.C at PS Kangan Pur Tehsil & District Okara.
2. The prosecution's case is that on 14.8.1993, marriage of Muhammad Anwar s/o Bhaila had to take place but due to some family frictions, the complainant party did not participate in the ceremony despite the efforts made by the accused party through the 'Punchait'. Shortly after the return of the members of the 'Punchait', Muhammad Ashiq, Niaz and Aslam accused armed with 12 bore double barrel guns, Jahangir armed with hatchet, Sadiq alias Sadi and Rafique armed with Dangs, Arif armed with Carbine, Nawab armed with hatchet, Rashid armed with Sota, Mushtaq alias Kali armed with gun, and Fakhar Hayat petitioner armed with carbine attacked the complainant party.
Muhammad Ashiq accused fired with his gun at Abdul Hamid who received injuries on different parts of his body and fell down on the ground. Then Jahangir and Nawab accused gave hatchet blow to Abdul Hamid, Sadiq and Rashid accused gave sota blows to Hamid, Mohammad Aslam and Niaz fired at Ranjha causing injuries on different parts of his body. Ranjha ran for his life but fell down in front of the office of the Union Council. At this juncture, the complainant, his uncle Rashid Ahmad. Amanat alias Bagoo, Mirza brother of the complainant and Mst. Ashran Bibi came forward to rescue the injured persons, whereupon the petitioner fired two shots with his carbine causing injuries to Rashid Ahmad. Arif also fired with his carbine causing injuries to Amanat Ali. Thereafter, all the accused persons allegedly resorted to indiscriminate firing causing injuries to Mirza and Mst.
Ashran Bibi. According to the complainant, S persons namely, Mushtaq alias Kali, Jahangir son of Kar am Din, Mst. Nuchi, wife of Samma, Niaz son of Nawaz and Rashid son of Siraj on the side of the accused persons were injured due to indiscriminate firing of the accused persons.
3. The petitioner's learned counsel submits that the petitioner had no motive to join the co-accused and that he did not cause any injury to Abdul Hamid and Ranjha, the two deceased persons. He submits that the place of occurrence was near the house of Aslam and Sadiq accused and not that of the complainant. He further submits that the prosecution did not properly explain the injuries sustained by the 5 persons on the side of the accused persons. In support of his contention, he places reliance on the following judgments:-
1. Muhammad Nazir Vs. Muhammad Sadiq & another (1978 S.C.M.R. 171)
2. Muhammad Hussain Vs. Muhammad Siddique and another (1987 S.C.M.R. 861)
3. Muhammad Shaft and another Vs. The State (1990 P.Cr.L.J. 929)
On the other had, learned counsel for the complainant submits that the petitioner was member of an unlawful assembly and had caused as many as 16 injuries to Rashid Ahmad, uncle of the complainant. Placing reliance on the cases of Amir Vs. The State (PLD 1972 S.C. 277) and Muhammad Akram Vs. The State (1992 P.Cr.L.J. 1378) he submits that the petitioner is not entitled to the concession of bail at this stage.
4. The petitioner is a first cousin of Muhammad Aslam co-accused and nephew of Nawab co- accused (as mentioned in ground 'G' of the petition) and appears to have joined the co-accused due to his dose relationship with them. He was armed with a carbine and had fired two shots at Rashid Ahmad real brother of Abdul Hamid deceased. He received as many as 16 injuries on the back (from neck to buttocks) and narrowly escaped death. In his statement u/s 161 of the Cr.P.C, the injured person had dearly stated that the petitioner had fired at him twice. His statement is supported by the other injured eye witnesses, namely, Amanat, Mirza, Mst. Ashra Bibi and the complainant. True, 5 persons are also injured on the side of the accused persons but this fact has not been suppressed by the prosecution. The judgments relied upon by the petitioner's learned counsel proceed on their own distinguishable facts. In the case of Muhammad Nazir the explanation that the accused party had received injuries due to brick-bats was belied by the medical evidence. Moreover, it also appeared doubtful that the complainant being himself injured could have caused as many as 18 injuries to accused party by throwing brick-bats. Hence the Hon'ble Supreme Court refused to grant leave to appeal against the passed by the High Court. In Muhammad Hussain's case the injuries received by the accused were completely suppressed by the prosecution. In Muhammad Shafis case also the complainant party did not give any explanation regarding the injuries suffered by the accused party. In the present case the fact that 5 persons were injured on the side of the accused persons has been mentioned in the FIR. According to the complainant they were injured due to indiscriminate firing of the accused persons. Prima facie, this explanation is not quite convincing. However, even if it is presumed that the complainant party had initially committed aggression and caused some injuries to the above referred 5 persons, the accused persons appear to have far exceeded their right of self defence by killing two persons and causing a large number of injuries to 5 eye witnesses.
5. For the fore going reasons, I am not persuaded to allow bail to the petitioner at this stage. It is clarified that the observations made above are purely of tentative nature and shall not stand in the way of the trial Court in coming to its own independent conclusions in the light of the evidence adduced by the parties. This petition is dismissed with the above clarification.