JAFFAR AND OTHERS vs THE STATE

ORDER

1. ' MUHAMMAD HALEEM, J.-By a short order we had converted this petition into an appeal and allowed bail to the petitioners. These are the reasons for it.

2. ' A case was registered against the petitioners and Isso Thaim at Police Station Jati under section 302 read with section 34, P. P. C. On 12th of August 1979, for causing the murder of Jummo at noon the same day over the opening of the watercourse. It was alleged that the first petitioner inflicted a hatchet: blow with its sharp side on the arm of the deceased while the other two gave hatchet blows on the other parts of the body. However, the first petitioner lodged a report earlier at 2-30 p.m. The same day in which he gave a counter version to the effect that he saw six cattle heads of the deceased jummo grazing in his field whereupon he rounded them for being taken to the cattle- pound and on the way he was accosted by Jummo, Muhammad Sid diq and Pooro, who, in their attempt to rescue the cattle, caused hatchet and lathi blows to him and thus they succeed in rescuing the cattle. In regard to the dispute proceedings for keeping peace were pending between the parties.

3. ' The deceased had five injuries out of which one was incised wound on his left forearm and the others were an abrasion, a bruise and a swelling. According to the doctor, the swelling on the back of the neck was caused by a blunt weapon which resulted in his death. The first petitioner had also three injuries with a blunt weapon which were simple in nature.

4. ' The petitioners and Isso applied for bail in the Court of Session but the prayer was refused on the ground that at that stage the counter version could not be considered; and if the plea was of right of self defence that too could only be determined at the trial. The prayer for bail was repeated in the High Court. Only Isso was granted bail as the Assistant Advocate-General conceded that he was only attributed the role of lalkara, and as regards the others, they were prima facie held to be responsible for causing the death of jummo.

5. ' In seeking leave to appeal the learned counsel for the petitioners contended that the first petitioner had also received injuries in the fight and while refusing bail to the petitioners, the High Court did not give due consideration to the counter version. It was next contended that from the available material it could not be said as to who caused the fats injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry under section 497(2), Cr. P. C. The learned Additional Advocate-General appeared to oppose the bail but after examining the material we were of the view that it was case of further inquiry. Accordingly we converted the petition into an appeal and allowed bail to the petitioners.