MUHAMMAD SHARIF Versus THE STATE

The petitioner along with seven others, is as accused of offences under section 302/307/141/149, P. P. C. One Zia‑ud‑din Advocate died in this incident. The facts as they have been stated in the F. I. R. are as follows.

2. The complainant along with his brothers is residing in Chak No.69/5 L. They have a joint garden which was originally allotted to Abd ul Hamid, one of the accused persons and there has been litigation about it as well. One 24th of August, 1975, the day of occurrence complainant along with his brother Muhammad Amin and two labourers we re working in the garden. Zia‑ud‑din deceased who had gone to see them was also present. Petitioner also came there and asked Zia‑ud‑din not to plead a civil case against him as a lawyer, otherwise he shall have to pray for it. Zia‑ud‑din refused to oblige him as it was his profession. This argument gave rise to on altercation which resulted in a brawl and assault. The situation was however, saved by Qasim Ali and Muhammad Amin another brother of the complainant. The petitioner then went away saying that he will teach him a lesson.

3. Some time later, petitioner along with others variously armed as stated in the F. I. R. allegedly came back. The petitioner himself "vas armed with a sots. Khalid Sharif a co‑accused and petitioner's son raised a lalkara and tired a pistol shot hitting no one. The complainant and others ran towards their bungalow. Javed son of Abdul Hamid then fired a shot with has rifle which hit Zia‑ud‑din at his left thigh. Zia-ud ‑din fell down and died. Javed fired more shots hitting, Muhammad Amin and Niaz, at their thighs. These two also fell down. The complainant gent to fetch his gun but meanwhile the accused went away.

4. It is contended by the learned counsel for the petitioner that he facts as given in the F. I, R. were absolutely incorrect. According to him, the correct position has been given in the counter‑version on which case has been registered against the complainant‑party on 1st of September, 1975, a copy of which has been placed on the record. It is further, submitted that there is no explanation for the injuries caused to the present petitioner, Sadaqat and Javed, in spite of the fact that they were injured in the same incident and were examined by the Medical Officer the same day regards the delay, it was submitted that as the local police including the S. P. concerned, refused to register their, case, they were obliged to approach the D. I. G., under whose orders a case in question was registered.

5. The learned counsel also referred to 1975 P Cr. L J 162 where there was a counter case in a similar situation, the accused has been allowed bail. He has also referred to P L D 1966 Lah. 6 to say that the mere fact that the complainant party suffered more injuries is not sufficient to hold them aggressors. If prosecution failed to explain injuries on the person of the accused, the omission makes the prosecution case doubtful. Similarly, in 1970 P Cr. L J 666 where the accused had suffered injuries and a counter‑case under section 307, P. P. C. had also been registered, the case was found covered by section 497(2), Cr. P. C. and bail allowed to all the accused except to the one who was specifically named by the deceased as the assailant.

6. The facts as given in the counter F. I. R. seem to be nearer to the situation, as it explains all the injuries on both the sides. Prima facie, the motive as being attributed for the occurrence is also weak inasmuch as that generally no one would go to ask a Counsel not to prosecute a civil case against him particularly when the relations between them are not so cordial. Further, admittedly it was Javed in both the versions who fired to kill Zia‑ud‑din and injured others. No specific overt act is attributed to any other accused and therefore, the possibility falsely involving others cannot be ruled out.

7. The learned Counsel for the petitioner submitted that the petitioner Muhammad Sharif has six injuries; one of those is with a sharp‑edged weapon on head. It is contended that though this injury on the head was declared as simple yet' it was on the vital part of the body and the petitioner remained in the hospital for about 19 days. Similarly. Sadaqat and Javed had 3 injuries each, all simple.

8. The learned Counsel for the complainant submitted that the grounds being taken by the learned Counsel for the petitioner do not entitle him bail at all. According to him, the F.1. R. about the counter version which was lodged about 7 days after the incident is an after‑thought. He further submitted that the injuries on the person of the three accused were self-inflicted and therefore, tile complainant neither knew about it nor would he be called upon to explain the same. As regards the fact that the petitioner had been examined on the day of occurrence, the learned Counsel had no reply. He however, vehemently contested the present petition on e round that the whole incident had been started by the petitioner, who the ground ion came back with the co‑accused with due preparation of the commission of the offence. The learned Counsel for the State supported the commission the complainant and also opposed this application.

9. The only factor which is being relied on by the complainant's side in opposing this application is that the petitioner is the pivotal figure in the incident and therefore, he in any case should not be allowed bail. Admittedly, there is no other overt act attributed to him. He is stated to be aged 72 years. He was armed with a seta, but did not inflict any injury. He himself is injured but the same has not been explained in the F. I. R. lodged by the complainant. The counter version on the other hand give all the details as regards injuries on both the sides. The F. I. R. lodged by the complainant, thus omitted to give and explain the injuries on the person of the accused party. In view of the judgments referred to above, the Court is entitled to draw adverse inference against the complainant. It was held in 1972 S C M R 682 that in tile case of counter‑versions where it is yet to be seen who is the aggressor and whether petitioner has committed any offence punishable with death or transportation, the High Court may grant bail leaving it open to the committing Magistrate to cancel bail if the evidence on record justifies the same. In P L D 1J68 S C 349 it was hold by their Lordships that if reasonable grounds connecting the accused with the offence of murder are to be found from the record, the bail must be refused. But if there are grounds for a further inquiry into the guilt of an accused, the case will fall under section 49742) and bail should not be withhold.

10. For the reasons stated above, the petitioner shall be released on bail on his furnishing a bail bond in the sum of Rs. 15,000 with two sureties in the like amount to the satisfaction of A. C., Sahiwal.