KHAWAJA MUHAMMAD SAEED, J.- The above noted appeal has been filed against an order of Additional District Court of Criminal Jurisdiction Muzaffarabad dated May 18,1994.
2. The facts giving rise to the present controversy briefly stated are that both the appellants herein are involved, along with Muhammad Zubair and Shabir Ahmed sons Of Mir Muhammad, the present appellant No. 1, in a case under Sections 5/4 and 15 of the Islamic Penal Laws Act Section 34 and 397 of the Azad Penal Code. The appellant alongwith Zubair moved an application for their release on bail before the District Criminal Court Muzaffarabad on March 26, 1994 whereas Shabir Ahmed moved his application for pre-arrest bail before the said Court on April 25,1994. All the applications were entrusted to the Additional District Criminal Court Muzaffarabad for hearing and disposal by the District Criminal Court Muzaffarabad. Pre-arrest bail of Shabir Ahmed was confirmed. The concession of bail was also allowed to Zubair. However, the appellants herein were declined the concession of bail. Hence the present appeal.
3. One Mir Muhammad is also the complainant in the present case. On March 5, 1994, he presented a written report at police station Ghari Dopatta wherein it was stated that the complainant and accused-party had a dispute over a piece of land. They were not allowing their cattle to enter into the field belonging to the rival party. On the fateful day of the incident, i.e. On March 5,1994 at about 3-000 p.m. The goats of Mir Muhammad accused herein entered into the field of the complainant which was not taken into good taste by him. Mir Muhammad accused along with his sons Muhammad Sharif and Zubair got excited and called names to he complainant. In the meantime, the brothers of complainant, namely, Mahboob and Niaz Muhammad also came there. On this, Mir Muhammad accused-appellant and his sons Muhammad Sharif and Zubair were infuriated. On the demand of the accused-appellant his son Muhammad Sharif brought 12- bore gun from his house and gave k to the accused-appellant who fired at the brother of the complainant, Mahboob which caused injuries on his person on account of which he fell on the ground. The complainant rushed to his brother and in the meantime, the accused-appellant Muhammad Sharif fired at the complainant with his revolver in order to take his life but instead of complainant, the fire injured the face of his brother, Kaloo. The incident attracted the father of the complainant, Sher Muhammad who also was injured with the hatchet by Mir Muhammad, accused-appellant. The accused-party, thereafter took the dead body of the deceased Mahboob from the place of occurrence and kept it near their house. In the back-ground of these facts, the bail was refused to the present appellants.
4. Mr. Ghulam Mustafa Mughal, the learned Counsel for the accused- appellants argued that in this case, Mir Muhammad has also received fire-arm injuries which have not been explained by the prosecution. According to him, the complainant-party was aggressor and the appellants being victim of aggression, were entitled to the concession of bail by accepting their right of self defence.
He further argued that accused in fact died on account of indiscriminate firing of the complainant- party but on account of past enmity the murder has been attributed to appellant No. 1 who is an aged man and has been injured seriously in the incident. He further argued that in presence of counter version which is fully established on account of fire arm injuries on the person of the appellant No.1, it was a case of further inquiry within the meaning of Section 497 (2), Cr.P.C, in which the concession of bail should have been allowed to the accused-appellant. The discretion in the circumstances of the case has not been exercised by the learned Addl: District Criminal Court in accordance with law on the subject.
5. Hie Learned Assistant Advocate General has supported the impugned order under appeal.
6. I have taken into consideration the respective submissions of the learned Counsel for the parties and have perused the record of the case.
7. On May 5, 1994, an application was moved by Mir Muhammad appellant that in the incident he had received injuries and the pellets are in his body which are injurious to his health. He also prayed that a certificate about his age may also be secured from the doctor on which, the Learned trial Court directed the jail authorities to refer the appellant to Hospital for his treatment and report.
On May 11, 1994, the surgical specialist examined the accused and expressed his opinion in the following words:- "...... The patient has been examined. He is having multiple small pellets in his body.
It is not required nor possible, to remove all pellets as these are not dangerous and are not going to cause any serious disturbance to health.
For some legal proceedings, removal of few of pellets can be performed. If you think it is necessary, kindly reply and inform the doctor concerned (who issued the medico legal certificate) to contact me for the collection of pellets and further proceedings."
On May 11, 1994, another application was moved on behalf of the appellant No. 1 that on March 8, 1994 the Medical Officer Ghari Dopatta referred the appellant to C.M.H. Muzaffarabad for X-Ray but till the the, the X-Ray report was not obtained by the prosecution and without acting upon the advice of the M.O. The accused-appellant had been sent to judicial lock-up.
8. However, in the light of the record made available to this Court, it is yet to be established whether the complainant or the accused-party was aggressor. In the present case, apparently sufficient evidence has been collected by the prosecution against the accused -appellant whereby the have shown armed with deadly weapons. In the instant case, the prosecution has fixed the liability of murder of the deceased Mahboob on Mir Muhammad accused-appellant who, according to the learned Counsel for the appellant is more than 65 years of age and on account of paralysis his right leg is badly affected.
9. Admittedly Mir Muhammad accused-appellant received fire arm injuries during this incident. But his injuries have not been explained by the prosecution. Therefore, in the peculiar circumstances of this case, it is yet to be established as to which party was aggressor. From the record it is not clear that the incident was the result of any premedication. The unexplained pellet injuries on the body of the accused-appellant, Mir Muhammad, in the circumstances, require further enquiry as contemplated by clause (2) of Section 497, Cr.P.C., as such without going into the merits of the case, I accept the appeal of Mir Muhammad accused-appellant. It is directed that Mir Muhammad accused-appellant shall be released from the custody forthwith, if not required in any other case, provided he furnishes a bail bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of any Magistrate 1st Class Muzaffarabad.
10. So far as the appeal with regard to the other accused-appellant is concerned, the same stands rejected. However, after recording the statements of some of the P.Ws he may renew his prayer for bail before the trial Court, if so advised. In that case, the trial Court shall be at liberty to pass any appropriate order on the bail application if moved before it without being influenced by this order.