MUKHTIAR HUSSAIN SHAH vs THE STATE

ORDER

' ASIF SAEED KHAN KHOSA, J.--Through this petition Mukhtiar Hussain Shah petitioner has sought post-arrest bail in case F.I.R. No.263 registered at Police Station Shah Jamal, District Muzaffargarh on 1-8-2006 in respect of an offence under section 302, P.P.C. During the investigation it has already been opined by the police that instead of section 302, P.P.C. The offence attracted in this case is one under section 322, P.P.C. Read with section 34,P. P. C

2. A perusal of the F.I.R. Shows that there was no serious motive on the part of the petitioner to do away with the deceased. Admittedly the petitioner was empty-handed at the relevant time and an assault by the petitioner and his co-accused upon the deceased was a result of a sudden flare-up without any premeditation on their part. Nothing had been recovered from the petitioner's possession during the investigation of this case. No specific injury to the deceased stands attributed to the petitioner in the F.I.R. Which contains only a generalized and collective allegation against the petitioner and his co-accused. It is of critical importance to mention here that according to the F.I.R. The petitioner and his two accused had jointly and collectively given fist blows and slaps to the deceased on his face after felling him on the ground but the Post-mortem Examination Report pertaining to the dead body shows that the deceased had sustained only two abrasions one of which was on his hand and other was on his right knee-joint and that the deceased had sustained no injury on his face at all. The learned counsel for the petitioner has pointed out that in his case-diary No.5 dated 9-8-2006 the Investigating Officer had expressly observed that the case in hand did not A attract the provisions of section 302, P.P.C. But the smile attracted an offence under section 322, P.P.C. Read with section 34, P.P.C. An offence under section 322, P.P.C. Does not carry any sentence of imprisonment. It is admitted at all hands that so far no challan has been submitted in connection with the present case. The petitioner is languishing in Judicial lock-up and his physical custody is not required by the police at this stage for the purposes of investigation.

3. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.