' This order disposes of application for release on bail of Falak Sher an accused in case of murder under section 302/109, P. P. C.
2. Heard either side. I have also perused the record. The First Information Report in the case lodged by Ghulam son of Mian Lona an eyewitness within a few hours of the incident alleges that the parties had a dispute over agricultural land which led to the institution of a criminal case against the accused party for the offence of attempted murder under section 307, P. P. C. On the day of incident the deceased accompanied by the informant and a few others named in the first information report was proceeding to Bahawalnagar in connection with the abovesaid case. The deceased stopped in the way to urinate while the informant and others accompanying them proceeded onwards. After a shortwhile they heard alarm raised by the deceased and saw that Falak Sher petitioner armed with a gun, Ali Sher and Niaz armed with soils emerged out of a sugar- cane field. The petitioner fired at the deceased hitting him in the right leg. The deceased caused injuries to the petitioner with hatchet in his hand which he would generally keep with him and did not allow the petitioner to repeat the fire. All the three accused ran away when challenged by the witnesses. Ghulam Muhammad succumbed to the injury after a shortwhile. Abdul Ghani was also arrested by the Police on the allegation that he had instigated the above-said three accused to kill the deceased. Abdul Ghani, Ali Sher and Niaz have been admitted to bail by the learned Sessions Judge, Bahawalnagar.
3. Mr. Mehmood Ali Khan learned counsel for the petitioner contended that according to medical report, the petitioner was found to have on him seven injuries five of which were caused with hatchet (sharp edged weapon). Two injuries (3 and 5) which were on the vital part of the body had been declared grievous. It is well nigh impossible that the deceased who had according to the first information report died immediately after the incident could have been capable of dealing a number of serious injuries to the petitioner after having received gunshot injury at the hands of the petitioner. The version of the prosecution is on the face of it improbable or at least highly doubtful.
The counter version of the defence that the complainant side had attacked the petitioner and the latter had used the gun in exercise of right of private defence of body is nearer the truth. In view of counter versions in the case the question if the petitioner had fired at Ghulam Muhammad deceased in the manner alleged by the prosecution is a matter for further inquiry. Reliance in this behalf was placed on the judgments in Muhammad Aslam v. The State (1), Bahadar etc. v. The State (2) and Muhammad Aslam and others v. The State (3).
4. Learned counsel for the State contended rightly as I may say so that the question if the petitioner had acted in the right of exercise of private {{FOOT NOTE}}
(1) 1977 P Cr. L J 575 (2) 1975 P Cr. 162
(3) 1975 P Cr. L 3 125 {{FOOT NOTE}} defence of body which touched closely the merits of the case could not b considered at this stage.
This argument is well supported by the judgmen of Supreme Court in Muhammad Aslant v. The State (1), in which it was held that High Court is not to examine the merits of the prosecution case or th plea in defence. The judgments referred to by learned counsel for th petitioner proceed on their peculiar facts which do not bear a close proximity to the facts of the instant case. It is a settled rule of law that preliminary inquiry or trial could not be launched upon for the purpose of disposal of application for grant of bail as merits of the case could not be foreclosed at this stage.
It will be hazardous to say at this stage even tentatively whether or not the deceased had been rendered altogether incapable of wielding the A hatchet in his hand after he was allegedly fired at by the petitioner. The question if the act of the petitioner in causing fatal injury to the deceased wa protected by right of private defence of body which needs elaborate inquiry will be decided in the light of evidence at the trial does not justify order releasing the petitioner on bail. Plea of self- defence could not be evaluated for the purpose of bail. The judgments in Imdad All v. Shahab-ud- Din (2), and Ismail v. The State (3), cited by learned counsel for the State support this view.
5. . Record be immediately sent down.
(I) P D 1967 SC 539 (2) 1975 P Cr. I, J 1145
(3) 1977 SCM R 512