1978 PLP 7 (SCMR)

NASIM HASAN SHAH, J.‑This is a petition for leave to appeal against the order dated 20.9‑1977, passed by the Lahore High Court, cancelling the bail earlier granted by the order of the learned Additional Sessions Judge, Mianwali, to the petitioners.

2. The facts of the case, briefly stated, are that the petitioners herein, namely. Mohammad Akbar, Nazir Mohammad, Fateh Khan, Ahmad Nawas and Khan Mir, along with three others, viz. Shah Nawaz, Alam Sher and Fateh Sher, were accused of offences under sections 302, 334, 148 and 149, P. P. C., for having formed an unlawful assembly while armed with sticks and Vaholas, and in pursuance of the object thereof caused the death of Ghulam Rasul The learned Additional sessions Judge enlarged the peti tioners on bail on the grounds that the medical evidence showed that the deceased suffered two grievous injuries, but neither of these injuries was attributable to the petitioners; they were ascribed to Shahnawaz, Alam Sher and Fateh Sher, that the deceased bad died in the hospital twelve days after the occurrence and it appeared that the petitioners could only be guilty of an offence under section 325, P. P. C. In any event, the case was of further inquiry. Hence it fell within the ambit of section 497(2), Cr. P. C. Consequently they were entitled to the indulgence of bail.

3. The complainant Ghulam Qadir filed a petition before the High Court for cancellation of bail. The learned Judge in the High Court observed that according to the prosecution the five petitioners along with the other three co‑accused had formed themselves into an unlawful assembly with the common object of causing the death of Gmlam Rasul. All of them were armed with lethal weapons and caused injuries to the deceased. Though only three co‑accused of the petitioners were attributed specific injuries, including grievous injuries and the petitioners were only ascribed simple injuries, even then they could be vicariously liable under sections 148 and 149, P. P. C. The learned Additional Sessions Judge was not, therefore, justified in coming to the conclusion that so far as the petitioners were concerned, only a case under section 325, P. P. C. was made out. The learned Judge in the High Court also observed that the medico‑legal report and the port‑mortem examination report showed that the deceased had suffered simple and grievous injuries and that these injuries were collectively sufficient to cause death. Hence the case of the petitioners appeared. Prima facie, to be covered by the provisions of section 497(1), Cr. P. C. and it was not a fit case for releasing them on bail pending their trial Accordingly the bail was cancelled.

4. Before up, tee learned counsel for the petitioner argued that Ghulam Rasul was a sick man and be died not on account of the injuries inflicted by the petitioners and sir co‑accused but due to pentonitis and tuberculosis infection. In this connection he referred to tire repast of the Medical Officer which was to the effect that he was unable to find out any single. Collectively, the injuries might have caused death. But peritonitis looked to be one of the causes of death. Moreover, the deceased appeared to be a case of chronic tuberculosis.

5. The above report shows that the medical officer has not expressed any definite opinion that peritonitis was the cause of death. So far as his opinion that the deceased was suffering from chronic tuberculosis is concerned he bad in his report stated that the report of the Pathologist would throw further light on this matter. The said report has also been placed on the record and is to the effect that "no tuberculosis lesion seen". Thus the observation of the learned Judge that the doctor had opined that the death of the deceased was caused by the cumulative effect of the injuries is borne out by the record.

6. The perusal of the F. I. R., however, reveals that Fateh Khan so of Ghazi and Ahmad Nawaz son of Shahnawaz petitioners are not alleged to have inflicted any injury on the deceased Ghulam Rasul, but are alleged to have caused simple injuries to the complainant (Ghulam Qadir). The case, therefore, appears to stand on a different footing. This aspect of the matter has been overlooked by the learned Judge in the High Court. The learned counsel for the petitioners cited the case of Mahla v. State (1976 P Cr. L J 1059) which supports the contention that the person who had not caused injuries to the deceased cannot, prima facie, be held to hale committed any offence punishable with death or imprisonment for life.

7. After having heard the learned counsel fop the petitioners and the learned Assistant Advocate‑General on behalf of the State, we feel that this matter can be finally resolved on the arguments advanced and on the basis of the present record. We, accordingly, convert this petition into as appeal and proceed to dispose it of.

8. The above discussion shows that the learned Judge in the High Court has not exercised his discretion improperly or illegally in cancelling the bail of Muhammad Akbar, Nazir Mohammad and Khan Mir, who allegedly caused injuries to the deceased, and his order to that extent does not require interference. However, the case of Fateh Khan and Ahmad Nawas petitioners was distinguishable and the order of the learned Additional Sessions Judge, allowing them bail, was not liable to interference. There would accordingly allow this appeal to the extent that Fateh Khan son of Ghazi and Ahmad Nawaz son of Shahnawaz (petitioners/appellants 2 and 4) shall be admitted to bail on their furnishing bail bonds in the sum of Rs.10,000 each with one surety each in the like amount to the satisfaction of the Assistant Commissioner, Bhakkar. Petition partly accepted.