' Muhammad All petitioner being a complainant in the case F.
1. R. No, 9 of 1976 registered in Police Station, Hafizabad on the 6th of January 1976 under sections 148-302/307/365/452/149, P. P. C. Has moved this petition under section 439, Cr. P. C. Praying for the cancellation of the to Ata Muhammad and Muhammad Akbar respondents (two of the six accused) on the 7th of December 1976 by Additional Sessions Judge, Gujranwala.
2. According to the first information report a fight had taken place on a matrimonial dispute between the parties two months prior to this occurrence resulting in injuries to Muhammad Akbar respondent and Anwar, his brother and co-accused for which offence Nazir (deceased) and Walayat, the injured witness, along with some other persons were prosecuted under section 307, P.
P. C. They were, however, released on bail under an order from the Sessions Court about 20 days earlier which was allegedly resented by Muhammad Akbar respondent and motivated this deadly assault on the complainant party.
3. It was alleged that Muhammad Ali petitioner was sitting along with Walayat (the injured witness) inside their haveli movashian at about 7-30 p.m. On the fateful evening when Akbar and Ata Muhammad respondents armed with a pistol and a rifle (respectively) arrived there alongwith their co-accused Anwar etc. All of a sudden and catching hold of them carried them to the nearby shatala field under a threat to their lives. The alarm so raised attracted Nazir (deceased) to the spot when Muhammad Akbar respondent fired two shots, one of which hit him at his mouth followed by a gunshot from Ata Muhammad respondent which injured his legs and felled him to the ground, whereupon Faqira and Gulzar (the co-accused) showered further blows with hatchet and dang respectively on his legs. On this Walayat (the injured witness) rushed towards his father Nazir (deceased), but before he could intervene Ata Muhammad respondent and his co-accused Arshad and Faqira fell upon him and caused a number of serious injuries on his person with their respective weapons including firearms.
4. The reports of these shots also brought Baqar P. W. And others to the scene on which the two respondents and their co-accused made good their escape. After their exit Muhammad Ali petitioner and other persons attended to the injured and found Nazir dead.
5. Leaving the others to guard the dead body Muhammad All petitioner hastened to the police station and lodged his report there within an hour of this violent attack on them, naming therein the two respondents and their co-accused with their respective weapons and injuries caused thereby.
Muhammad All petitioner had also suffered some injuries during the preceding scuffle which were incorporated in the karwai Police under this report by Sub-Inspector Sultan Ali, who sent him to the hospital where he was examined by Dr. Irshad Bhatti at 9-30 p.m. The same evening.
6. On the completion of the investigation Muhammad Akbar, Ata Muhammad respondents and their brother Anwar moved an application for bail under section 498, Cr. P. C. Which was rejected by the same Additional Sessions Judge; on the 2nd of June 1976 where after they approached this Court tor the same but the application (Cr. Misc. No, 2477/B of 1976) was withdrawn by their learned counsel to enable him to move the Sessions Judge once again as the material points raised in their earlier application were not considered in disposing of the same. A certified copy of that application was placed on record wherein a conflict in the first information report and the post- mortem report had been asserted as the main ground of attack while the order of the learned Judge rejecting the bail application was altogether silent about it, so they had a legal right to solicit a review of such a slipshod order. They accordingly put in a second application which was accepted in respect of the two respondents conceding the alleged conflict, while Anwar, their co- accused was declined the privilege of bail.
7. This conclusion of the learned Additional Sessions Judge has been assailed before me as erroneous and misconceived being based on a misreading of the post-mortem report and the clarification obtained by the police from the doctor about it.
8. A notice was, therefore, issued to the State and the two respondents and after hearing the counsel of the parties and perusal of the record I am persuaded to agree with this contention as the learned Judge did not appear to have applied his mind to the description of the injury (No, 1) as detailed in the post-mortem report which is reproduced below for a ready reference:- "Irregular contused wound left side of chin just below lip. Margin fairly tatood 1" x 3/4" x going deep mandible blacken. There were three satellite wounds around major wound. They were also slightly tatooed. The wound on the lip was going deep. Others were superficial."
' Fairly tatooed margins of the wound with three small satellite tatooed wounds around it was quite a prominent indication of a cartridge with small pellets having been fired at him which hit his chin.
In the first information report this injury was specifically attributed to Akbar respondent who was alleged to have used a pistol in firing this shot and the type of his pistol being not known at this stage the possibility of the use of a deli pistol with a cartridge could not be excluded at this stage, especially when the doctor had later confirmed on a query that it was a firearm injury. Ata Muhammad respondent was alleged to have fired a gunshot on Walayat, the injured witness, which assertion was also confirmed from his medico-legal report disclosing a large number of injuries on his person including four grievous wounds one being with a fire-arm.
9. The other aspect in such cases is the background of the occurrence which too was quite apparent from the initial report as only two months earlier there had been a fight between the parties on a matrimonial dispute coupled with a serious allegation that after the release of Nazir (deceased) and Walayat (the injured witness) on bail in that earlier case under section 307, P. P. C.
The two respondents and their co-accused had taken the law into their own hand for punishing them before the Court could deliver its verdict on their complaint. This wanton outrage of law had also been disregarded in allowing the concession of bail to the respondents.
10. It was a case of an unlawful assembly formed with common object of committing murder with deadly weapons like pistol, guns, carbine, hatchet and a clang but the implications of section 149, P. P. C. Have been altogether ignored in taking account of the allegations made against the respondents and their co-accused.
11. The motive (including the preceding incidents), the manner of the assault, the number of the assailants, the weapons used, the seat of injuries and extent of damage done by them are the primary considerations in dealing with such matters of which no notice seems to have been taken by the learned Judge. I have, therefore, to accept this petition and cancelling the to them direct the District Magistrate, Gujranwala, to get them arrested immediately and recommit them to judicial custody till the decision of the case.
Bail cancelled.