MUHAMMAD HUSSAIN ALIAS BUDHU Versus STATE

ORDER

Petitioner is one of the eight accused in case F.I.R. No.155 registered at Police Station (Saddar), Sheikhupura on 15-3-1993 under section 302/109/ 201/148/149, P.P.C.

2. The brief facts of the case are that persuant to an old animosity between the parties, on 15-3-1993 at 8-00 a.m. when Hussain alias Kukka (deceased) was travelling in a Tonga alongwith Siddique complainant, Mst. Rani, Aslam and Sultan P.Ws. in order to meet his son Bashir in the jail, where he stood confined as an under-trial in some case, and reached in the area of Village Mudkey, they were suddenly intercepted by the petitioner and his six co-accused all armed with fire-arms. They all started to firing at the Tonga. Hussain alias Kukka (deceased) jumped out of the Tonga in order to save his life and was loading his licensed rifle for defending himself but was fired at by Asghar co-accused, followed by Waryam co-accused and then by Hakim co-accused. As a result of these shots, he was grievously injured and fell down. Then all the accused armed with fire-arms started firing at him until he died on the spot. Having finished him in this manner, they lifted his dead body and threw it in the nearby Upper Chanab Canal. His dead body first drowned but soon it came up and started floating on the surface. It was again fired at by Waryam as a result of which it drowned and disappeared. The matter was reported to the police by Muhammad Siddique on the same day at 9-30 a.m. and the case was registered in the manner aforesaid.

3. The dead body of Hussain alias Kukka was recovered from the Canal on 22-3-1993. On post-mortem examination, the doctor found 3 injuries caused by fire-arms and 2 by a blunt weapon. The two fire-arm injuries were located on the face and one on the upper left arm besides two simple injuries caused by a blunt weapon.

4. It is argued on behalf of the petitioner that he had no direct motive against the deceased because the animosity was between the complainant party and the family of Nazir alias Jeera, who are not related to the petitioner except to the extent that they belonged to same tribe. It is contended that no specific role has been assigned to the petitioner and the only attribution against him is that he alongwith the others resorted to firing when the deceased was lying injured on account of the injuries suffered by him at the hands of Asghar, Waryam and Hakim. It is urged that the allegation of general nature do not necessarily imply that the accused armed with fire-arms had fired at the deceased and possibly it could be in the air as well. It is further urged that if so many persons armed with fire-arms had really resorted to firing at the deceased, he must have suffered a large number of injuries but, as per autopsy, he had received only two injuries located on his face and one on the left upper arm which could, at the most, be caused by two shots. In the opinion of the learned counsel, the incident had been exaggerated because if four accused armed with fire-arm had fired at the deceased and each fire had hit him, then there should have been at least four fire-arm injuries on his person but were only three and this fact created a contradiction between the ocular account and the medical evidence. The facts of the case do not attract the principle of vicarious liability as well, he adds. Finally it is urged that the petitioner is an old person and no weapon of offence has been recovered from him during the investigation.

4. The application has been opposed on behalf of the State as also by the learned counsel for the complainant on the ground that the petitioner is related to his co-accused and they jointly committed murder of Hussain alias Kukka and he had a motive to kill Hussain alias Kukka because the latter was complainant in the murder case of Bashir, in which Nazir alias Jeera co- accused was the accused.

5. No specific role is attributed to the petitioner. Either he is distantly related to his co-accused, who had direct enmity with the deceased, or he is' only their tribe-man. Reckless firing by seven accused, including the petitioner, who all were armed with fire-arms, has been alleged but, as per post-mortem report, the deceased suffered only three injuries, two on the fate and one on his left upper arm. The petitioner was statedly amongst those who had jointly resorted to firing, not necessarily aimed at the deceased after he had been hit by the shots allegedly fired by the three co-accused: He is said to be an aged person and by this time has been behind the bars for about one year. In these circumstances, he is grantee bail if he furnishes bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate; Sheikhupura.

N.H.Q./M-1563/L

Bail granted,