' This is an application under section 497(5), Cr.P.C. For the cancellation of bail granted to Muhammad Younas and Muhammad Afzal respondents by the learned Additional Sessions Judge in a case registered at Police Station Dijkot, District Faisalabad vide F.I.R. No,218, dated 25-9-1994, for offences under section 302/324/34, P.P.C. This is an unfortunate case in which four persons have died, three young men from the complainant side and a lady from the side of the accused. The facts as stated in the F.I.R. Have been enumerated in para. 2 of the order of the learned Additional Sessions Judge, which is reproduced below:-- "Muhammad Shafi son of Muhammad Bakhsh lodged F.I.R. No,218 at Police Station Dijkot on 25-8- 1994 at 8-10 a.m. Alleging therein that on 24-8-1994, a quarrel took place between the children of both the parties. Muhammad Afzal and Muhammad Amjid sons of Muhammad Younis (petitioner) gave beating to Arif son of Rashid. Arif informed his parents. Brothers of Arif namely Tariq and Charri alongwith Nisar son of complainant gave beating to Safdar Ali brother of Muhammad Afzal son of Younis. On 25-8-1994, Arif son of Rashid abovesaid was going to ease himself. When he reached in front of the house of Abdul Khaliq son of Muhammad Ismail (brother of Muhammad Younis petitioner), Safdar Ali, Muhammad Afzal sons of Muhammad Youths and Muhammad Youths son of Muhammad Ismail came there and started giving beating to Muhammad Arif. Tariq and Charri brothers of Muhammad Arif armed with Sotas reached there to help Muhammad Arif and started giving beating to Muhammad Younis with Sotas. Meanwhile, Muhammad Arshad son of Muhammad Youths armed with .12 bore double-barrel gun came out. Muhammad Yousaf son of Muhammad Shafi (complainant) came out from his house in order to intervene. Muhammad Arshad son of Muhammad Younis fired which hit Yousaf who returned to his house. Muhammad Arshad again fired which hit Yousaf at his back. Ijaz Ahmad son of Yousaf came out from his house.
Muhammad Arshad fired twice which hit Ijaz. Nisar Ahmad son of Muhammad Shafi, Mst. Zahida Bibi daughter of Rashid Ahmad and Fazal Din, Lambardar witnessed the occurrence. Muhammad Younis brought .12 bore gun from his house during the fight. Muhammad Arshad and Muhammad Younis started indiscriminate firing causing injuries to Nisar Ahmad, Mst. Zahida and Fazal Din.
Yousaf and Ijaz Ahmad expired at the place of occurrence while Nisar Ahmad expired at hospital after two days of the occurrence. Mst. Balqees, mother of Muhammad Arshad accused came out and made an effort to stop Muhammad Arshad from firing but a fire shot by Muhammad Arshad hit her on her right armpit. She also died. It is further alleged that during the occurrence all the accused kept on raising Lalkaras. It is further alleged that all the accused kept on providing bullets to Muhammad Arshad and Muhammad Younis, Tariq, Mst. Zahida Bibi and Fazal Din received injuries in the occurrence.'
2. The counter-version from the accused side finds mention in the statement of Muhammad Mansha, recorded by the police on 27-8-1994. This counter-version is stated in para. No,3 of the order of the learned Additional Sessions Judge and the same is reproduced "On the other hand, Muhammad Mansha got recorded his statement before police on 27-8-1994 alleging that on 25-8-1994 at 6 a.m., Muhammad Yousaf (deceased) armed with hatchet, Muhammad Nisar (deceased) armed with .12 bore gun, Muhammad Younis armed with .12 bore gun sons of Muhammad Shafi, Muhammad Ashraf son of Ali Muhammad armed with .12 bore gun, Ijaz Ahmad (deceased) son of Muhammad Yousaf armed with hockey, Tariq son of Abdul Rashid armed with hatchet launched attack at the house of Abdul Khaliq and started giving injuries to Muhammad Younis (accused/petitioner in F.I.R.). Muhammad Ashraf raised Lalkara that no one should be spared. Muhammad Nisar, Muhammad Younis sons of Muhammad Shafi and Muhammad Ashraf started firing. Mst. Balqees wife of Muhammad Younis petitioner received fire- arm injury and expired at the place of occurrence. Muhammad Arshad son of Muhammad Younis brought .]2 bore gun from his house and started firing in self-defence which hit Muhammad Yousaf etc. Who ran away. Motive as narrated by Muhammad Mansha was a quarrel between the children of both the parties occasioned on 24-8-1994."
3. Learned Additional Sessions Judge vide order, dated 4-1-1995 has granted bail to Younis and Afzal accused on the ground that they had not been attributed any specific injury to any of the deceased persons.
4. Learned counsel for the petitioner has argued that there is a definite role attributed to Afzal accused, to the effect that he supplied bullets to Arshad and Younis. So far as Younis accused is concerned, he is alleged to have brought a gun with which he resorted to indiscriminate firing alongwith Arshad co-accused. On account of this firing done by Younas and Arshad four persons namely Nisar Ahmad deceased and the three injured P.Ws. Received injuries. He has further submitted that the F.I.R. Was lodged within 2 hours of the occurrence while the counter-version was recorded 2 days thereafter. Muhammad Mansha who made the counter-version belongs to Chak No,81/JB which is eight miles away from the village of occurrence, namely, Chak No,281/RB.
5. He has further submitted that in the counter-version it is alleged that Muhammad Yousaf armed with hatchet, Muhammad Nisar, Muhammad Yousaf and Muhammad Ashraf all armed with .12 bore guns, Abdul Rashid armed with hatchet and Ijaz Ahmad armed with hockey launched attack at the house of Abdul Khaliq and started giving injuries to Muhammad Younis, but Muhammad Younis accused did not suffer any injury except one simple blunt weapon injury. There is no injury caused with the fire-arm or with the hatchet.
6. On the other hand, Ch. Abdul Saleem, learned counsel for the respondents submitted that it is a case of counter-version and one person namely Mst. Balqees from the accused side suffered 14 fire-arm injuries and it is a case of further inquiry as to which of the two parties is the aggressor. So far as respondents are concerned, it is stated that Muhammad Afzal has no role and Muhammad Younis who is the husband of Mst. Balqees Bibi deceased acted in self-defence and, therefore, the bail has been rightly granted to them by the learned Additional Sessions Judge.
7. Learned State Counsel submits that in the investigation conducted by the Inspector/S.H.O. And supervised by the A.S.P., Safdar accused was found innocent while Muhammad Afzal, Muhammad Younis and Arshad have been found fully involved in the commission of the offence alleged against them.
8. The learned counsel for the parties and the State have been heard at great length. The Investigating Officer vide Zimni No,13, dated 8-10-1994 came to the conclusion that three persons from the complainant side died on account of the firing made by Muhammad Arshad accused.
Muhammad Younis did not cause injury to any of the accused. He was attacked and injured by the complainant party in the first instance. It was thereafter that he came armed with gun and resorted to firing. With regard to Muhammad Afzal respondent he has opined that he played no active role in the commission of the crime.
9. Tariq, Zahida Bibi and Fazal Din are the injured witnesses in this case. All of them have implicated Muhammad Younis in their statements recorded under section 161, Cr.P.C. By alleging that after the death of Muhammad Yousaf and Ijaz he came armed with gun and alongwith Arshad resorted to indiscriminate firing as a result whereof Nisar Ahmad who later died in the hospital and the three P.Ws. Were injured. Muhammad Younis is father of Arshad, Safdar and Afzal accused. Safdar. Has been found to be innocent in the final investigation because he was not found to be present at the place of occurrence. So far as Muhammad Afzal is concerned, it is not denied by the petitioner's learned counsel that no role is attributed to him except that he supplied the bullets to Arshad and Younis. No injury of any kind has been attributed to this accused. Consequently, so far as Afzal is concerned, his case is covered by subsection (2) of section 497, Cr.P.C. And the bail has been rightly granted to him by the learned Additional Sessions Judge. This, application as against him is dismissed.
10. So far as the case of Muhammad Younis respondent is concerned, there are definite allegations of firing made by him. Three injured P.Ws. Have implicated him with indiscriminate firing alongwith Muhammad Afzal co-accused, as a result whereof Muhammad Nisar lost his life and three P.Ws.
Suffered injuries. In these circumstances he was not entitled to bail. The plea that the firing was made by him in self-defence cannot be entertained at this stage, for the purpose of grant of bail.
This plea will have to be proved at the trial. There being definite allegations made by the injured P.Ws. In their statements recorded under section 161, Cr.P.C., the opinion of the Investigating Officer that he resorted to firing in self-defence cannot be preferred at this preliminary stage. Therefore, the bail granted to Muhammad Younis is liable to be cancelled. Accordingly, the application for cancellation of bail as against Muhammad Younis is accepted.