' This order will dispose of two petitions, one under section 497 (5), Cr. P. C. (Cr. Misc. No, 1379 of 1975) for cancellation of the bail granted to Haji Muhammad Ashraf Khalil, Mehr Din, Bashir, Maqbool and Nazir by the learned Addl. Sessions Judge, Lyallpur, on 28th March 1975 in a case under sections 148/302/307/149, P. P. C. Registered at Police Station Kurrianwala on 18th September 1974, and the other (Cr. Misc. No, 1771/B of 1975) moved under section 498, Cr. P. C. For the grant of bail to the remaining accused Haider, Aslam, Safdar Ali and Zahur, both of which were admitted by my learned brother Ataullah Sajjad, J. With necessary notices. As his Lordship is on leaving (summer spell) these have been placed before me for disposal.
2. The prosecution case as reported to the Police in brief is that land measuring 4 killas and 6 kanals situated in Square No, 11 of Chak No, 206 R. B. Belonged to the complainant and had been given on lease by the complainant and his brother Muhammad Yousaf to Ashraf (co-accused) of the same Chak about a year earlier. Sometime after the lease started Ashraf in collusion with the Revenue officials got this land mutated in his name by way of sale. In this fraud to dodge the complainant Khadim Hussain he went in appeal against the order of mutation passed by the Tehsildar to the Assistant Collector, Jaranwala. His appeal was accepted and the mutation of sale was set aside. As a result of this order the complainant claims to have entered into physical possession of this land. Ashraf (accused) then went in appeal to the Commissioner against the said order of the Assistant Collector which according to him was still pending. On 18th September 1974, at 8-00 a. m., the complainant and his two sons Muhammad Rafique and Mohd. Shabir, his brother's son Mahfooz Baig son of Yousaf, Caste Mughal, and Nazir son of Jatal Khan, Caste Rajput, were ploughing field No, 20 of Square No, 11 when the above-named two accused emerged from a nearby maize crop all of whom were armed with firearms. Ashraf and Nazir (accused had pistols with them while, all the 8 other accused including the petitioners in Cr. M. No, 1771/B/75, had guns.
Ashraf accused raised a lalkara that they would make the complainant and his companions taste the result of ploughing the field. The complainant and his companions stopped ploughing the field.
The accused opened fire. The shot fired by Aslam (petitioner) hit Muhammad Rafique deceased at his left flank. He fell down. Another shot fired by Zahoor petitioner hit Muhammad Rafique deceased on his left knee. Haider petitioner fired a shot which hit Muhammad Shabbir at his hand. Safdar petitioner fired a shot which hit Mahfooz Baig at his left leg. The other accused also fired shots and continued to shout lalkara, but unfortunately those shots did not hit anybody. Muhammad Rafique died soon after sustaining the injuries.
3. On behalf of the accused it was urged by Mr. Aftab Farrukh that the initial possession of the petitioners on the land in dispute was even admitted in a first information report and no documentary evidence had been collected by the Investigating Officer about the alleged resumption of its possession by the complainant side which in the ordinary course of events would be improbable, especially in view of the serious contest going on between the parties about it in the Revenue Courts. The accused had also suffered some gunshot wounds during the same occurrence as they were medically examined on the same day, but the first information report was silent about it and suffered from some mis-statement of facts as well. The Police had registered a cross-case under section 148-307/149, P. P. C. Against 12 persons of the complainant party giving rise to two counter versions of the occurrence.
4. The Patwati was in the meanwhile examined by the Committing Magistrate and had supported the petitioners about their continued possession over the land in dispute eversince its sale in their favour and coupled with the suppression of the injuries by the complainant, it would change the entire complexion of the occurrence but I will not like to express any further opinion about it at this stage. There being two counter versions and the complainant party being on bail will have a better chance of representing their case as observed in Fateh Singh's case (1). Similar view was taken by this Court in Mst. Shafiquan's case (2) wherein their Lordships declined to interfere with the following observations:- "After hearing the learned counsel for the petitioner, we are satisfied that the High Court has exercised the discretion vested in it properly. There are counter-versions and it is yet to be seen as to who the aggressor is and whether the respondent has committed an offence punishable with death or transportation for life."
5. As a result Criminal Misc. No, 1379/B of 1975 is dismissed and the notices issued to the respondents are withdrawn and they shall continue to enjoy the privilege of bail as they had caused no injury to the deceased.
6. As regards the second petition i. e. Cr. Misc. No, 1771/B of 1975 Aslam and Zahur were specifically attributed the fatal gunshots fired at Muhammad Rafique deceased by them, so they do not deserve this concession at this stage. The injuries caused by Haider and Safdar to Muhammad Shabbir and Mahfooz Beg P. Ws. Were neither on any vital part nor of serious nature and their case being at par with that of the complainant party I cannot deny them the right of bail at this stage in view of the above-cited cases and direct that they shall also be released from custody on their furnishing a bond each in the sum of Rs, 10,030.00 (Rs, Ten thousand) with one surety each in the like amount to the satisfaction of the Enquiry Magistrate. {{FOOT NOTE}}
(1) AIR 1959 All. 320 (2) 1972 SCM R 682 {{FOOT NOTE}}