ORDERMUHAMMAD NAWAZ ABBASI, J. -A case under Section 302/34 PPC for the allegation of committing the murder of Ahmad Nawaz deceased was registered against Fateh Khan petitioner and his father Muhammad Ramzan at 2.00 p.m. On 18.1.1993 with Police Station Jauharabad District Khushab.
2. Muhammad Ramzan son of Muhammad Hayat lodged a report that on the same day at 8 a.m.
He along with Ahmad Nawaz deceased was present near the deserted dera in his land when Muhammad Ramzan, empty and Fateh Khan petitioner armed with 12 bore double barrel gun appeared at the scene and on the instigation of Muhammad Ramzan his father, fired at Ahmad Nawaz deceased causing him injuries on right thigh and left had.
3. The motive for the occurrence as stated in the FIR is that Muhammad Ramzan co-accused of the petitioner suspected illicit relations of Ahmad Nawaz deceased with her daughter Munawar Kliatoon.
4. During the investigation, the police finding the complainant party also responsible for firing at the petitioner and his father, submitted challan under section 324/34 PPC against Haq Nawaz, Ghulam Muhammad, Sher Muhammad and Muhammad Ramzan. The petitioner being not satisfied with police investigation and submission of challan against four persons with the exclusion of the name of Noor Muhammad and Feroze filed a private complaint under section 324/342/440/148/149 PPC against all the above named six persons.
5. The version given in the private complaint is that Muhammad Ramzan co-accused of the petitioner about four months ago, borrowed a tarpali from one Muhammad Khan Bhatti which was demanded back by Noor Muhammad but Muhammad Ramzan father of the petitioner refused to had over Tarpali to him and as a result thereof Noor Muhammad feeling insult extended threats for taking revenge. On the day of occurrence Haq Nawaz armed with rifle, Ghulam Muhammad with 12, bore gun, Sher Muhammad with Wohla, Muhammad Ramzan with hatchet, Ahmad Nawaz with, 12 bore gun and Feroze with rifle attacked on the petitioner and his father. They opened indiscriminate firing hitting on the walls and ventilators of the house of the petitioner who with his father and ladies took shelter in the Kotha but Sher Muhammad and Muhammad Ramzan went for demolishing the Kotha with an attempt to set it on i.e when the petitioner in his self-defence and to save the lives of other members of his family fired which hit Ahmad Nawaz deceased. The story of the private complaint except the addition of name of Noor Muhammad and Feroze and the plea of exercise of right of self-defence is almost same as given in the cross- challan under Section 324/34 PPC.
6. Ahmad Nawaz deceased after 32 days of the occurrence died in the hospital. The doctor who conducted post-mortem examination of the deceased opined as under:- 'The autopsy finding in this case are consistent with anaphylatic shock precipitated by blood transfusion necessitated by repair of surgery of the firearm damage."
Initially the case was registered against the petitioner and his co-accused under section 324/34 PPC but after the death of Ahmad Nawaz in hospital, challan was submitted under section 302/34 PPC.
7. The bail is urged on the grounds that the death was not the direct result of injury allegedly caused by the petitioner to the deceased but it was due to the blood transfusion which do not ipso facto constitute an offence under section 302 PPC. The learned counsel for the petitioner contended that complainant side was also challaned under section 324/34 PPC by the police which provides sufficient proof of the correctness of the version of the petitioner in the private complaint and that not the petitioner but complainant party was the aggressor.
8. The learned counsel appearing on behalf of the State submitted that deceased met death as a result of the injuries caused to him by the petitioner and case being covered by prohibitory clause of section 497 Cr.P.C, he is not entitled to the concession of bail.
9. The petitioner is attributed firearm injuries to the deceased on right thigh and left had who survived but later on expired after undergoing operation as indoor patient in the hospital. The doctor who performed post-mortem examination on the dead body, has not declared the injuries as direct cause of death but as a result of blood transfusion. The submission of cross-challan by the police against the complainant party under section 324/34 PPC containing not different facts to that of the version of the petitioner as disclosed in the private complaint wherein the accused named, have been summoned and are said to have been admitted to bail supports the defence/version. The place of occurrence as per version of the petitioner is his kotha which fact too is borne out from the police investigation. The case being of cross-version and the question that which party was at fault and committed the aggrission is yet to be determined. A reasonable doubt is raised regarding the correctness of the prosecution version in view of specific plea of the petitioner supported by sufficient material available on record. Whether the petitioner, while acting in exercise of the right of private defence, fired at the deceased or the occurrence took place in the manner as stated by the prosecution is a matter to be determined and resolved after recording of the evidence at the trial. Apparently the data available in the medical evidence and the cross- version, provides sufficient grounds for further inquiry into the guilt of the petitioner vis-a-vis his liability of commission of an offence under section 302 PPC and that which party was responsible for the aggression. The petitioner having strong claim for admission to bail by virtue of section 497(2) Cr. P.C. Is allowed concession of bail subject to his furnishing bail bonds in the sum of Rs.
1,00,000/- (One lac) with two sureties in the like amount to the satisfaction of A.C./Dutv Magistrate, Jauharabad..