NOOR MUHAMMAD Versus ABDUR RAZZAQ

1. MUHAMMAD GUL, J. ‑These two petitions are directed against the order of the Lahore High Court dated 13-11‑1975 allowing bail to the respondents in the two petitions other than the State, all of whom are accused in a case under sections 302/307 and 148 read with section 149, P. P. C.

2. These petitions are by the complainant who incidentally is one of the accused in the counter‑case registered under section 307/348 read with section 149, P. P. C. He has however been granted bail.

3. Over a dispute relating to a right of passage, there took place an incident of rioting on the morning of 7‑4‑1975 in the area of Kot Hakim Khan, P. S. Bhera, District Sargodha, involving, inter alia, the aforesaid respondents herein and two others on the one side and the party of the petitioner on the other. The respondents are residents of Chak Misran who it appears, claim right of passage over a strip of land comprised in the holding of Malik Farooq Abroad Khan Noon. The petitioner heroin is Manager of Malik Farooq Abroad Khan Noon, on whose direction the petitioner and others on his side were, engaged in ploughing the strip over which the respondents claimed right of passage.

4. Both parties carried fire‑arms which they used against each other resulting in the death of two persons and a simple fire‑arm injury on the side of the petitioner herein and a previous fire‑arm injury to one person on the: side of the respondents herein. Two separate reports concerning the incident were lodged: the first at No. 60/42 was made by Khurshid Ahmad belonging to the party of the respondents at 10‑15 a.m. and the second by Noor Muhammad petitioner herein at No. 61/42 at about 11.00 a. m. accusing each other of aggression. On the basis of the first report a case under sections 307, 148/149, P. P. C. was registered against the petitioner and his companions. On the basis of the second report a case udder section 302/307/148/149, P. P. C. was registered against the respondents and two others.

5. The learned Judge allowed bail to the respondents mainly on the ground that both the parties having armed themselves with firearms were spoiling for a show down. Secondly, fatal injuries to the two persons on the petitioners side were not attributed to any of the respondents. From among the respondents only simple fire‑arm injury to Juma was attributed to Razzaq respondent Accordingly, influenced by these circumstances, the learned Judge allowed bail to the respondents.

6. Mr. Ata Ullah Sajjad appearing for the petitioner complained that the learned Judge shad completely overlooked that two persons had been killed on the side of the complainant. Further according to the police report, too, the respondents were the aggressors and that the police had reported for the cancellation of the case under section 307/148/149 against the petitioner and the co‑accused with him. It was also stressed that it was common ground between the parties that the incident had taken place in the field belonging to Malik Farooq Ahmad Khan Noon when it was being ploughed by means of a tractor under the supervision of the petitioner. These facts in the submission of the learned counsel have not been given due weight by the learned Judge and the grant of bail to the respondents was in violation of the inhibition in section 497, Cr. P. C.

7. We are not impressed by the argument. 'The fact that both the side carried firearms which they used against each other, is not seriously denied. The learned Judge has given reasons which weighed with him to allow bail to the respondents. It is not suggested that these consideration were irrelevant. One may not quite agree with the reasons of the High Court but it is not possible to suggest that the reasons were fanciful or arbitrary, it which alone would lay foundation for interference by this Court in exercise of its special jurisdiction.

8. The petitions are accordingly dismissed.

9. Petitions dismissed.