' Murid Hussain, Wahid Bakhsh, Riaz Ahmad and Ghulam Farid petitioners prayed for the grant of bail after arrest in case F.I.R. No,39/95, dated 12-2-1995 of Police Station Kot Chhutta, District D.G.
Khan under sections 302, 337-F(i), 337-F(ii), 148/149, P.P.C. Registered on the statement of Ghulam Haider for an occurrence which took place on 12-2-1995 at 11 a.m. In the area of village Mana Ahmadani situated at a distance of 6 miles from the police station.
2. According to the prosecution version narrated in the F.I.R. Petitioners,, and their co-accused Piyara armed with Sotas came to the land of thr complainant where complainant and his brother Allah Wasaya were collecting wood from the land. The accused started abusing Allah Wasaya and caused 17 injuries on different parts of his body. The alleged motive of occurrence was that Allah Wasaya used to cultivate the land on lease owned by refugees of Notak Hameed which was contiguous to the land of the accused who intended to take possession of the said land. They had many a times quarreled with each other on that account.
3. Allah Wasaya was admitted in the hospital in injured condition, where he succumbed to injuries on 14-2-1995 and the offence under section 302, P.P.C. Was consequently added.
4. Learned counsel for the petitioners argued that the motive alleged is not supported from any circumstance, because, according to the learned counsel, no civil or criminal proceedings were initiated between the parties and that the petitioners have been attributed simple injuries with blunt weapon which were not the cause of death; that the occurrence took place at spur of the moment without premeditation and the petitioners had no intention to commit the murder and at the most they can be held responsible for causing simple injuries; that in the post-mortem .Report injury No,15 was found fatal and sufficient to cause the death and this injury has not specifically been attributed to any of the petitioners and question of application of section 34, P.P.C. Shall be determined at the trial and till then case of the petitioners requires further inquiry as envisaged under section 497(2), Cr.P.C. Lastly it was argued that in the F.I.R., Riaz Ahmad son of Jawanak brother of Murid Hussain and Wahid Bakhsh petitioners, was named as accused but during the investigation Riaz petitioner was involved mala fide.
5. Learned counsel for the complainant and the State have vehemently opposed the application and argued that the petitioners gave merciless beating to Allah Wasaya deceased; that number of accused commensurate with number of injuries; that the occurrence took place in the broad daylight and there was no question of mistaken identity. Further argued that during the investigation blood-stained Sotas, weapon of offence, were recovered at the potation of all the accused/petitioners; that the report of Chemical Examiner and the Serologist show that Sotas.
Were stained with human blood. Lastly, it was argued that even if the contentions of the learned counsel for the petitioners are admitted true, the offence would fall under section 315, P.P.C. Which falls within the prohibitory clause of section 497, Cr.P.C.
6. I have heard learned counsel for the parties and gone through the record and considered the arguments of the parties with care.
7. It is true that the petitioners have not been specifically burdened with the allegation of causing injury i,e, injury No,15 to the deceased and the injuries caused by them were found simple in nature.
Learned petitioner's counsel in corder to establish that petitioners had no intention to cause death of Allah Wasaya deceased: relied upon PLD 1972 SC 277, 1985 SCM R 565, 1986 PCr.LJ 2585, 1983 PCr.LJ 1558 and 1984 SCM R 300. I am afraid the contention of the learned counsel is misconceived and the authorities relied upon are not applicable to the present case as radical change has taken place by the incorporation of section 315, P.P.C. As amended by Criminal Law (Second Amendment) Ordinance (XII of 1993), S.7(1) which reads as: "Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death, is said to commit Qatl Shibh-i-Amd."
' The proposition under consideration is also elucidated vide illustration:-- "A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl Shibh-i-Amd."
' The petitioners gave Sota blows to Allah Wasaya deceased and caused injuries which prima facie do not show that the petitioners had any intention to cause death of Allah Wasaya and they had only the intention to cause harm to his body. The petitioners repeated the blows and prima facie offence would fall under section 315, P.P.C., which is punishable under section 316, which provides that:-- Section 316, P.P.C.--- Whoever commits Qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir."
8. The petitioners were named in the promptly registered F.I.R. With a specific role of causing injuries to the deceased. The nature of injuries specifically attributed to the petitioners, was such that it could not result into the death of the deceased and therefore, prima facie they were liable to commit Qatl Shibh-i-Amd punishable under section 316, P.P.C. Which falls within the prohibitory clause of section 497, Cr.P.C. There appear reasonable grounds for believing that the petitioners have been guilty of the offence punishable with imprisonment for 10 years or more, hence bail petition to the extent of Murid Hussain and Wahid Bakhsh is rejected.
9. The case of Riaz Ahmad petitioner is slightly different because in the F.I.R. Parentage of Riaz Ahmad petitioner/accused is narrated as Jawanak. As a matter of fact petitioner Riaz Ahmad is so.n of Kliuda Bakhsh. It was not contradicted before the Court that Murid Hussain and Wahid Bakhsh petitioners have no brother named Riaz Ahmad. In this view of the Matter, the participation of the petitioner Riaz Ahmad becomes doubtful and it haS been held in 1984 SCM R 429 and 521 that doubt, even if arises at the stage of .Bail, is to be resolved in favour of the accused/petitioner, which entitles him to the grant of bail.
10. For what has been stated above, the petition for the grant of bail to the extent of Riaz Ahmad son of Khuda Bakhsh is accepted. He is directed to be released on bailmtvided he furnishes bail bond in the sum of Rs,1,00,000 (One lac) with two sureties each in the like amount to the satisfaction of Sessions Judge/Trial Court, D.G. Khan.
' The prayer of Murid Hussain and Wahid Bakhsh is refused.
' The, observations made in this order, are tentative in nature and shall have no bearing upon the facts of the case at the stage of trial. The trial Court shall form its own opinion on the basis of evidence produced by the parties during the trial.
11. This petition is disposed of in the above terms.