1979 PLP 197 (SCMR)

MUHAMMAD AKRAM, J.‑This is an appeal by special leave from an order dated 19th of August 1976 passed by a learned Judge of the High Court at Lahore, allowing bail to respondents Nos. 1 to 4 herein in a case registered against them under section 302/307/34, P. P. C. Briefly, the relevant facts are these. On the 22nd February, 1976, at about digarwela in the area of village Daggar Rohtas, Police Station. Bhakkar, District Mianwali, the four respondents armed with sotis are alleged to have inflicted injuries on Yasin deceased Muhammad Bakhsh respondent No. 1 gave the first soti blow at his head and Ghulla respon dent No. 4 inflicted another blow to his head. After he had fallen down, all the four respondents gave beating to him with their sotis. The eye‑witnesses intervened to rescue him from the assailants who then left the spot. At 8‑00 p.m. on the same evening, Yasin himself made a report to this effect which was entered in the roznamcha at the Police Station, Bhakkar. He was examined by the Medical Officer, Bhakkar, who found five blunt injuries on his person. The Doctor again examined him after two days and reported that the patient had H,%O of blood in vomiting and expectoration. But its cause could not be diagnosed and the patient was admitted to the Hospital on the 24th of February 1976. Afterwards, on the 27th of February 1976, the Medical Officer referred him for expert opinion to the Medical Superintendent, District Hospital, Mianwali, with the report that he was passing blood in his stools and urine. He was, therefore, admitted to the District Hospital on the 28th of February 1976 and four bottles of blood transfusion was given to him. In spite of X‑ray and other investigation, the cause of the bleeding in him could not be exactly determined. In these circumstances, on the 4th of March 1976, the patient was referred to the Nishtar Medical Hospital for specialist treatment. On the 7th March 1976, the Senior Registrar (Surgery), Nishtar Medical Hospital certified that the patient had multiple injuries on his person. On examination he found that the patient had:‑ "Tender abdomen spleen palpable and tender. Bleeding/rectom and haematomesis (blood vomiting). Patient P. T. pale. Unrecordable pulse and B. P. He is being resuscitated and uptil now bottles of blood have been given. His condition is still disappointing and I declare these injuries as dangerous to life. His condition still does not allow for operation." On receipt of this certificate the F. I. R. against the respondents was formally registered at the Police Station under section 307, P. P. C. Afterwards on the 11th of April 1976, Yasin's injured spleen was removed but his condition did not improve. He had irregular high temperature the cause of which could not be ascertained and his Doctors observed that he may have to be operated upon again. In the course of his treatment he was given 70 transfusions. On the 14th of May 1976, the Senior Registrar, Nishtar Medical Hospital in his report observed that every attempt to treat his fever and improve his general health had proved in vain and that his condition was not out of danger. Moreover, it was possible that he may not survive during or after another operation on him. Yasin was discharged from the Hospital on the 14th of May 1976, more or less as a hopeless case who eventually died on the 9th of June 1976. His post‑mortem examination revealed that the death had occurred due to inflammation (infection) of the internal organs as a result of surgical operation (spleneetony) probably due to the injury to his spleen.‑ In these circumstances, the offence against the accused was altered into under section 302/307/34. P. P. C. and warrants for their arrest were issued. On the 12th of July 1976, the Sessions Judge, Mianwali, rejected their application for bail before arrest. He observed that according to the opinion of the Medical Officer, Bhakkar, who examined him on the 22nd of February 1976 and the certificate dated 7th March 1976 issued by the Senior Registrar (Surgery), Nishtar Medical Hospital, Multan, the injuries to him were dangerous to life. In the circumstances according to him, the accused were not entitled to the concession of bail. After their arrest they then applied to the High Court for bail which was allowed on 19‑8‑1976. Feeling aggrieved the appellant herein, a close relative of the deceased, applied to this Court for leave to appeal which was granted on the 23rd of October, 1976. We have heard the learned counsel for the appellant as well as for the private respondents and the State in this appeal before us. In allowing bail to the respondents the High Court observed that the occurrence took place on 22‑2‑1976, while Yasin eventually died on 9‑6‑1976. There were more than one medical reports about him and in the final post‑mortem exami nation report, the cause of his death was given as inflammation (infection) of the internal organs as a result of surgical operation which may be due to injury to spleen. The Court further observed that in the F. I. R. which was lodged on the statement of the deceased himself Mohammad Bakhsh respondent was attributed first stick injury at the head while Gulla respondent inflicted a second blow on the head as a result of which the complainant fell down and thereafter all the four respondents allegedly gave beating to him resulting in injuries including two injuries which were described as multiple. In the opinion of the Court out of the injuries found on the body of the deceased only one was on the head region and the medical evidence did not disclose that the head injury was the cause of the death of the deceased. Rather it revealed that during the course of the prolonged illness and hospitalization operation was performed on the deceased and his spleen had to be removed. The medical evidence was not consistent and uniform. Moreover, according to the High Court the fatal injury was not attributed to any one of the respondents and it shall be premature at this stage to determine if all the respondents were present and had participated or not. Therefore, the High Court purporting not to express any opinion on the merits and without going into details lest it might not prejudice the trial, allowed bail to respondents. This case was finally registered under, section 302/307/34, P. P. CA against all the four accused. In the circumstances the High Court while declining to express any opinion on the merits, was not justified at the same time in observing that the fatal injury was not attributed to anyone and that it shall be premature at this stage if all the accused were present and had participated or not. According to the version of the prosecution and eye‑witnesses the injuries to and the consequent death of the deceased was in furtherance of the common intention of all the respondents who were vicariously liable for the offences. Moreover, the High Court without any discussion appears to have misread the medical reports about the deceased in observing that it was not consistent and uniform. On 7‑3‑1976 the Senior Registrar, Surgical Ward, Nishtar Hospital, Multan observed in his report that multiple injuries found on the person of Yasin deceased, were dangerous to life. As a result of the merciless beating and the injuries, bleeding had started in the patient from his mouth, rectum and urine and it did not stop till the end. On 11‑4‑1976 Yasin's spleen, which was injured, had to be removed. His condition deteriorated and he eventually died on 9‑6‑1976. In the circumstances, the death appears to have been caused as a result of the injuries inflicted on the deceased by respondents. The High Court seem to have allowed bail to the respondents in disregard of some of the salient facts of the case and legal principles applicable to them. We, therefore, accept this appeal and cancel the bail allowed by the High Court to respondents Nos. 1 to

4. Non‑bailable warrants to issue against them returnable to the A. C., Bhakkar. Bail cancelled.