WAKEEL HASSAN Versus STAKE

ORDER

1. ANWARUL HAQ, J, Wakeel Hassan, alongwith ten others is being prosecuted for offence falling under sections 302, 307 etc. of the Pakistan Penal Code for causing the death of one Muhammad Yousaf and injuries to witnesses Amin Shakoor and Aziz. The witnesses and their companions including the first informant Muhammad Hussain also facing counter‑prosecution for having caused injuries to accused Muhammad Sarwar. As a result of Police investigation, the names of four accused persons, namely, Ahsanullah, Khalid Mahmood, Manzooor Ahmed and Abdul Halim Khan, have been shown in column No. 2 of the challan. The first informant Muhammad Hussain has filed a private complaint against them, and the same is pending alongwith two counter cases.

2. The first information report was registered in this case on the 3rd of March 1974, but the petitioner could not be arrested until the 6th of November 1974, owing to repeated application for bail before arrest made by him. However, by the latest order made by the High Court the 22nd of November 1975, bail has been finally refused to the petitioner.

3. It may be stated that co‑accused Irshad, to whom the fatal shot is attributed by the prosecution, is said to be absconding, whereas the four accused placed in column No. 2 of challan, are inn bail. Bail eras also been allowed to another co‑accused name Muhammad Anwar who is said to he a practising Advocate at Lahore.

4. In seeking leave to appeal against the order of the High Court. Mr. Sami Hayat submits that there was plenty of material on the record to show that there had been a free fight between the parties, with the consequences that each participant would be liable for his individual acts; that the fatal shot is not attributed to the petitioner; and that there are statements made by some of the witnesses that the petitioner was not present at the time of the: incident. It is next contended that although the merits of the case had also been urged before the learned Judge in the last application for bail, but he did not advert to them on the ground that he had already discussed them in the orders made by him fn the previous applications of the petitioner. Learned counsel submits that the learned Judge was not right in thinking that the latest application was based on the ground of delay in the finalization of the commitment proceedings.

5. After hearing the learned counsel as well as the learned Assistant Advocate‑General, Punjab, we have decided to convert this petition into an appeal and to dispose it of accordingly.

6. We find that there is material on the record to lead to a prima facts conclusion that there was apparently a free fight between the parties, during the course of which the fatal shot was said to have been fired by the absconding accused Irshad. The exact damage caused by the shot or shots fired by the petitioner does not appear to be ascertainable on the present record. In view of the fact that one of the accused ha absconded; and there are now three cases to be heard and decided simultaneously, namely, two counter‑cases and a private complaint filed by the first informant Muhammad Hussain, there is a likelihood of the trial being delayed. Considering all these circumstances we are of the view that this is a fit case in which bail ought to be allowed to the petitioner.

7. We would accordingly accept this appeal and direct that the petitioner shall be enlarged on bail in the sum of Rs. 10,000 with one surety in the like amount to the satisfaction of the committing Magistrate.

8. Appeal accepted.