1976 PLP 171 (SCMR)

MUHAMMAD HALEEM J.‑‑This petition for special leave to appeal is from the order of a learned Single Judge of the Lahore High Court, dated the 18th June, in Criminal Revision No. 513 of 1975 by which it was dismissed. The petitioner alongwith his five sons was implicated for the murder of Noor Muhammad alias Boota in pursuance of F. I. R. having been lodged at police station Daranwala, Tehsil Chistian, District Bahawainagar, and a case was accordingly registered under sections 148, 302 read with 149, P. P. C. It was alleged In the F. I. R. that he was empty‑handed but that h. exhorted his sons to kill the deceased, who was beaten to death with sticks. The petitioner apprehending his arrest moved four applica tions for bail before arrest but they were dismissed by the High Court. Thereafter he was arrested on 2nd April 1975 and while in custody he moved another bail application before the Sessions Judge, Bahawalnagar, who granted him bail lay order dated 5th April, 1975. Muhammad lqbal, the complainant thereupon moved the Court for the cancellation of bail and a notice of that application was served on him while 6e wag still in jail. On being released from jail he appeared in the Court on 17th April, 1975, on which date his bail was cancelled. Being thus aggrieved he assailed that order in Criminal Revision No. 513 of 1975, which applica tion was also dismissed as aforementioned. The learned Single Judge while upholding the order of the learned Sessions Judge has held that bail was not only cancelled on the ground tact the petitioner had concealed the fact of one of his earlier bail application having been dismissed on merit but also because the petitioner had not come to Court with clean hands and that his lea of old age was also rejected by this Court. The petitioner seeks leave to assail this order on the ground that the Courts below erroneously directed themselves on the question that there was a concealment of the earlier bail application having been dismissed on merit as in paragraph four of the impugned order there is mention of the fact that the petitioner bad stated that 6e bad attempted to get bail before arrest but that he was unsuccessful. The learned counsel also contended that it was as equally the responsibility of the State Counsel to bring home to the learned Sessions Judge tic fact that his earlier bail application was dismissed era merit, for, there was an indication in the bail application of the petitioner: and in any case this ground cannot be held as a bar for denying hire bail. Lastly the learned counsel contended that the learned Single Judge has virtually held the petitioner to be vicariously liable for the murder of the deceased. We celled upon the Assistant Advocate. General as to what he had to say and could be disposed of finally on the present record. However, in our opinion it was a short matter and could be disposed of finally on the present record. We, therefore, converted this petition into an appeal. There cannot be the denying of the fact that the appellant had stated in the application that he was unsuccessful in getting bail before arrest but he had failed to give particulars of the application and so also the orders passed on these applications. Nonetheless it was equally the duty of the State counsel to have pointed out to the learned Sessions Judge as to the dismissal of his application on merit, for, he had notice of the earring of the application and he could have well in advance taken instructions. This ground was wrongly taken into consideration by the learned Sessions Judge for cancelling his bail as otherwise on merits he was earlier of the view that he was entitled to bail. Again the learned Single Judge has blamed the appellant for concealing the fact from the learned Sessions Judge and has held on merits that the appellant was vicariously liable though tentatively. The case is, therefore, not one where there is concealment of fact but what can best be stated is that the particulars of the applications were not given though the result of those applications was stated. We do not see how his bail could have been cancelled for that reason. The learned Single Judge also fell into error while upholding that order. As the facts stand out the appellant has been attributed the role of an instigator and such role is commonly alleged against persons to implicate them otherwise. It will be for the trial Court to determine whether a case is made out against him for sharing the common object with those who committed the murder of the deceased. His case is thus covered by section 497 (2) and the appellant is entitled to bail, which we allow in the sum of Rs. 10,000 with P. B and one surety in the like amount to the satisfaction of the Inquiry Magistrate. The appeal is, allowed. Appeal allowed.