' SARDAR SAID MUHAMMAD KHAN, C.J.--- The above entitled appeals have been directed against the order of the Shariat Court, dated 17-3-1997, whereby, the revision petition filed by the accused was accepted and bail was allowed to Muhammad Akbar and Abdul Aziz, respondents, whereas the same was denied to Muhammad Yunus, appellant. As the above entitled appeals arise out of the single judgment, we propose to dispose of the same by this single judgment.
2. Abdul Malik, complainant, lodged an F.I.R. Alleging that he was resting at his house alongwith his family on 25-2-1977 when he was informed by his son, Zaheer Ahmad, that Muhammad Akbar, Abdul Aziz and Abdur Razzaq were digging the courtyard of their house. Consequently, he alongwith his son, Zaheer Ahmad, and Mst. Zubaida Begum, his wife, came out of his house and saw that Muhammad Akbar, Abdul Aziz, Abdur, Razzaq and Muhammad Siddique were digging his courtyard with " " and " " while Muhammad Yunus and Muhammad Khalil sons of Muhammad - Alam were standing armed nearby; Muhammad Yunus was armed with .12 bore gun, Muhammad Khalil with carbine and Muhammad Siddique with a pistol. When the complainant forbade them from digging his courtyard, the accused persons pelted stones on them and, thus, caused injuries to Mst. Zubaida Begum, his wife, and Zaheer Ahmad, his son. Muhammad Yunus is alleged to have fired with .12 bore gun, Muhammad Khalil with carbine and Muhammad Siddique with pistol fired at the complainant, his wife, Mst. Zubaida Begum, and Zaheer Ahmad, his son. Muhammad Akbar and Abdul Aziz are also alleged to have caused injuries with Danda to Zaheer Ahmad, his son and Mst.
Zubaida Begum, his wife. His daughter Robina Kausar, who came out of the house, is alleged to have been injured by Muhammad Yunus, accused, with the butt of the rifle. A case was registered against the accused under sections 324, 337, 445, 147, 148 and 149, A.P.C. Muhammad Yunus, Muhammad Akbar and Abdul Aziz applied for their bail to the trial Court but they were denied the same. On revision to the Shariat Court, the bail was allowed to Muhammad Akbar and Abdul Aziz but the same was denied to Muhammad Yunus, appellant. The above entitled cross-appeals have been preferred to this Court whereby Muhammad Yunus, appellant, seeks bail while Abdul Malik, complainant, has preferred appeal for the cancellation of bail allowed to Muhammad Akbar and Abdul Aziz by the Shariat Court.
3. It has been argued by Mr. Muhammad Yunus Arvi, Advocate, the learned counsel for the accused, that according to the medical report, Muhammad Yunus, accused, sustained injuries with fire-arm and blunt weapon but there is no explanation whatsoever by the prosecution as to how he was injured; similarly, there is no explanation of injuries which were found on the persons of Muhammad Akbar and Abdul Aziz respondents. The learned counsel has argued that a cross- report was given at the police station, copy of which is on the record but no case was registered against the complainant party. He has contended that the counter-version putforth by the accused is that they were attacked by the complainant party. Muhammad Yunus, appellant, was inflicted injuries with gun-shot and by blunt weapon; the other accused were inflicted injuries when all of them were working on a path and not digging the courtyard of the complainant, as has been alleged by him. The learned counsel has argued that the fire-arm injury found on the persons of Muhammad Yunus and the injuries with blunt weapon found on the persons of Muhammad Yunus, Muhammad Akbar and Abdul Aziz are unexplained and support the defence version that a fake case has been fabricated against the accused and the complainant party was aggressor. The learned counsel has further submitted that according to the findings of the Shariat Court it has not been proved that grievous injury which resulted in the fracture of arm of Mst. Zubaida Begum was caused by any of the accused persons whose bail matter is before the Court. He has further argued that the allegation of the prosecution that Muhammad Akbar and Abdul Aziz, accused- respondents, also caused injuries with Dandas to Mst. Zubaida Begum and others is afterthought and does not find place in the earlier part of the F.I.R. The learned counsel has particularly laid stress on the point that all the three accused persons whose bail matter is before the Court sustained injuries in view of the medical report and same has been suppressed by the prosecution.
4. In reply, Mr. Hussian Mazhar Kaleem, Advocate, the learned counsel for the complainant, controverted the arguments advanced by the learned counsel for the accused. He has argued that this was a preplanned incident in which the accused persons came armed and started digging the courtyard of the house of the complainant party and when they were restrained from doing so they attacked the complainant party with fire-arms and blunt weapons and caused injuries to them. He has strenuously argued that the injury was caused to Mst. Zubaida Begum at the hands of the accused persons who were all members of an unlawful assembly. Therefore, it is unnecessary to prove as to which of the accused persons caused it because each one of them is constructively liable for the act of the other. The learned counsel has further argued that there is no mention in the application given by Muhammad Yunus at the police station that he sustained any injury with fire-arm. Thus, the learned counsel has contended that the medical report relied upon by the accused persons is fabricated and appears to have been obtained by him through undue influence with the connivance by the police. He has also submitted that no case has been registered by the police on the application of Muhammad Yunus which further lends support to the fact that the so-called counter-version putforth by the accused persons is merely a fabrication.
' Ch. Muhammad Mushtaq, the learned Additional Advocate-General more or less supported the arguments advanced by the learned counsel for the complainant.
5. We have given our due consideration to the matter. Keeping in view the fact that prima facie members from both the rival factions sustained injuries with blunt weapons as well as with fire- arms and the fact that there is no explanation on the record as to how Muhammad Yunus, Muhammad Akbar and Abdul Aziz, accused sustained injuries, it cannot be said even tentatively as to which of the two versions is more plausible. Similarly, it cannot be said at this stage that the medical reports of the accused persons are false and fabricated. After the entire doctor who gave said reports is a prosecution witness and the accused persons were got examined by the doctor by the Investigating Agency. Therefore, it is premature to argue at this stage that there was no fire- arm injury on the person of Muhammad Yunus and medical report has been obtained through influence. Similarly, in presence of unexplained injuries found on the persons of Muhammad Yunus, Muhammad Akbar and Abdul Aziz, it cannot be said that the Shariat Court while allowing bail to two of them acted perversely or in violation of any principle governing the matter.
6. So far as the appeal filed by Muhammad Yunus, accused-appellant, is concerned, we are of the opinion that in view of the fact that he has also as many as six injuries, some of them are stated to have been caused by pellets, he deserves the concession of bail, especially so when he has made an application before the concerned S.H.O. But no action was taken on it by the Investigating Officer one way or the other.
The upshot of the above discussion is that we dismiss the appeal filed by Abdul Malik seeking cancellation of bail allowed to Muhammad Akbar and Abdul Aziz while accept the appeal of Muhammad Yunus, accused appellant and allow bail to him. It is directed that if he executes a bail bond in the sum of Rupees one lakh consisting of two sureties with a personal bond in the like amount to the satisfaction of any Magistrate 1st Class, Mirpur, he shall be released from the custody. The appeals stand disposed of as indicated above.