S. M. ZUBAIR, J.- The petitioner who is involved in a case under section 322/302 PPC, arising out of FIR No. 115, dated 20-4-1993, registered at Police Station Ghalib Market, Lahore, seeks to be admitted to post-arrest bail.
2. As per FIR, it is alleged by the complainant that on 20-4-1993, at about 7.00/8.00 p.m., he alongwith Javed Anwar, Ijaz Ahmad and other family, members, was sitting in his house and his were Mst... Rehana Shaheen was baking loaves on a kerosene oil stove. The petitioner who was addict of heroin and had quarrelled with Sajjad, a relative of the complainant, trespassed into his house. He asked the complainant as to where was Bhola so that he. Could teach him a lesson for the old quarrel. The deceased told him that he was not present in the house and at the same time rebuked him for entering the house. The petitioner infuriated and kicked the stove towards the deceased. The kerosene oil fell on the clothes of the deceased and caught fire. The petitioner decamped from the spot. On the hue and cry of the deceased, Muhammad Javed Anwar and Muhammad Ijaz extinguished the fire. Mst. Rehana Shaheen was taken to Services Hospital, Lahore, However, she died, due to extensive bums on 23-4-1993. Initially, the case was registered under section 324 PPC and on the death of Mst. Rehana Shaheen it was altered to one under section 302 PPC.
The police submitted the challan under section 302 PPC on 17-6-1993. Thereafter the mother of the petitioner moved an application before the S.S.P. Lahore, for the transfer of the investigation. On re- investigation, the SHO placing reliance on the affidavits of Haji Inayatullah, Khalid Mahmood, Muhammad Siddique, Safdar Hussain Shah and Amjad Hussain, who were not the eyewitnesses, amended the offence and submitted the supplementary challan on 16-9- 1993, under section 322 PPC.
The learned Ilaqa Magistrate vide order dated 2-10-1993, admitted the petitioner to bail for. The offence under section 322 PPC. However, on the application of the complainant, a learned Additional Sessions Judge, cancelled the bail of the petitioner by order dated 25-5-1995. The petitioner was taken into custody. Thereafter, the petitioner filed an application before the Additional Sessions Judge for bail after arrest, which was also dismissed on 14-11-1995; hence this petition.
3. The learned counsel for the petitioner vehemently contended that from- the bare reading of the FIR, no offence under section 302 PPC is made out. On the contrary, the case fairly and squarely falls within the provisions of section 321 PPC which is punishable under section 322 PPC and an accused person for the said offence is liable to diyat. Pleacing reliance on Manzoor vs. The State (1994 P.Cr.L.J. 1374), Amir vs. The State (P.L.D. 1972 S.C. 277) and Ch. Abdul Malik rv The State (P.L.D.
1968 S.C. 349), learned counsel contended that the petitioner is entitled to the grant of bail. He further contended that if for the sake of arguments, it is conceded without admitting that the case falls under section 302 PPC, still in view of the material collected by the police, it is a case of further inquiry, as it would be determined after the recording of detailed evidence whether the offence falls under section 302 or section 322 PPC.
In the end, learned counsel submitted that the learned Additional Sessions Judge is not competent to try the case, as no punishment of imprisonment is prescribed under section 322 PPC and the case is triable by the learned Magistrate.
4. The learned Law Officer, who has appeared on the direction of the Court, submitted that there is enmity between the petitioner, the sole accused and Sajjad, brother-in-law of the deceased, due to the fact as per narration of facts in the FIR that the petitioner was responsible for making Sajjad as an addict of heroin. According to the learned Law Officer, the petitioner deliberately kicked the stone towards the deceased, whereupon due to the sprinkle of kerosene oil the clothes of-, the deceased caught fire, hence the act of the petitioner falls within the second part of definition of Qatl-i-Amd, as defined in section 300 PPC. He submitted that the I.O. To whom the investigation was entrusted after the submission of the first dial I an under section 302 PPC, deliberately spoiled the prosecution case by relying on the affidavit of certain persons who were neither the eye- witnesses of the I occurrence nor were present at the scene; of occurrence at the relevant time.
Khalid Bashir and Aftab Ahmad, who according to the affidavits came at the spot were not examined under section 161 Cr.P.C. A learned Judge of this Court vide order dated 2-5-1995, passed in Writ Petition No. 1339 of 1994, held that once challan under section 302 PPC is presented in the Court then the I.O. Without there being any fresh evidence on the record, could not submit the supplementary challan under section 322 PPC in a machanical manner without application of mind. However, it was directed that both the challans be submitted before the Sessions Court.
The learned Law Officer also submitted that according to 8th column of | Second Schedule attached to the Code of Criminal Procedure, both these offences arc exclusively triable by the Sessions Court.
5. I have heard the learned counsel for the parties and have minutely perused the record.
According to the FIR, there was some animus between the petitioner and Sajjad, brother-in-law of the deceased and that if why he trespassed into the house of the deceased without the permission of the inmates. When the deceased admonished the petitioner for his act of high-handedness, the petitioner became furious and kicked the oil stove. According to the definition of Qatl-i-Amd as contained in section 299 PPC, the case of the petitioner falls within the second part fol aforesaid section, because the petitioner intentionally kicked the burning stove towards the deceased when the deceased was sitting closely baking loaves that in all probability the oil m the burning stove would cause fire to the clothes of the deceased, which actually resulted into extensive bums on the body of the deceased and ultimately proved fatal. The case-law relied upon by the learned counsel for the petitioner in case Manzoor vs. The State is not applicable to the facts of the present case, and is distinguishable. In the cited case, the accused persons have electrified the water tank without any care and caution which caused the death of the deceased. In the present case, the petitioner deliberately kicked the burning stove with the knowledge that the oil may fall on the deceased and the clothes of the deceased may catch fire and exactly oil so happened what the petitioner desired.
At the bail stage, the Court has to examine only the F.I.R., statement of the witnesses under section 161 Cr.P.C, and any other incriminating material collected by the police during the investigation.
Examining this material prima facie, I find that the eye-witnesses have fully supported the prosecution case as contained in the ..I.R. On re-investigation, the I.O. Has deliberately tried to spoil the prosecution case by procuring the affidavits of certain persons, who were the chance witnesses of the occurrence and were not residents of the place where the occurrence took place.
Moreover, in the FIR these persons are not nominated as eye-witnesses, so at this stage, their evidence would not be of any help to the defence. Prima facie. There exist reasonable grounds to believe that the petitioner is involved in a case which falls within the prohibitory clause. Resultantly, I find no merits in this petition, which is dismissed accordingly. However, the learned trial Judge is directed to conclude the trial as expeditiously as possible.
Before parting with this order I may clarify that any observation made in this ' order is of tentative nature and is confined for the disposal of this bail petition. The learned trial Judge would decide the case with a free mind and would not be influenced in any manner by this order.