1978 PLP 435 (SCMR)

DORAB PATEL, J.‑Muhammad Hussain, the petitioner in Cr. P. S. L. A. 36‑R/1978 is the son of Fazal Karim, the first respondent (hereinafter called the respondent) in Cr. P. S. L. A. 37‑R/1978. This petitioner's bail applica tion was dismissed by the Lahore High Court by its order dated 27‑5‑1978, whilst the respondent's application was allowed by the Lahore High court by its order dated 27‑5‑1978. Aggrieved by this order, the petitioner Muhammad Hussain has filed a petition for leave in which he presses for bail, whilst the petitioner in Cr. P. S. L. A. 37‑R/1978 is aggrieved by the order of the High Court granting bail, to the respondent. Muhammad Hussain and his father, the respondent, are being tried for the murder of Hayat Ali and the F. I. R. was lodged by the petitioner Cr. P. S. L. A. 37‑R/1978. According to this F. I. R. Hayat Ali's row had strayed on the day of the occurrence (13‑9‑1977) at about 11‑00 a.m., into, the field of the respondent and damaged his field, therefore, the respon dent and Muhammad Hussain started beating the cow, and abused Hayat Ali. Hayat Ali objected to the beating of the cow and advised father and son to take it to the cattle‑pond, but they replied that instead they would decide the dispute there and then. The respondent then grappled with Hayat Ali and gave him two blows on the head with the back side of a hatchet. Hayat Ali was rushed to hospital and an F.I. R. was lodged under section 307, P. P. C. against Muhammad Hussain and the respondent. As Hayat Ali succumbed to his injuries in hospital, the charge was converted into a charge for murder. After their arrest, the respondent and Muhammad Hussain had applied for bail in the Sessions Court, but as the Sessions Court refused bail, both the respondents and Muhammad Hussain had sought bail in the High Court. As only Muhammad Hussain had struck fatal blows, the High Court dismissed his bail application and allowed the respondent's bail application, I therefore, Muhammad Hussain and the private complainant have filed then, petitions against the High Court's order. Mr. Sardar Ishaque submitted that the High Court bad erred in granting bail to the respondent, because the respondent must have instigated his son Muhammad Hussain to attack Hayat Ali, deceased Confronted with the statement in the F. I. R. learned counsel submitted that it was the respondent's duty, as a father, to have advised his son not to hit the deceased, and as be admittedly did not so advise his son the submission was that the respondent must be presumed to have abetted his son, the moreso, as the blows inflicted were very violent blows. As we do not wish to prejudge the case of the parties in the Sessions Court, we would only observe that learned counsel has not even filed the section 161, Cr. P. C. statements of the eye‑witnesses and it is clear from the impugned order that there was material in support of the view taken by the learned Judge therefore, as no case has been made out for showing that the learn Judge exercised his discretion arbitrarily or capriciously in granting bail, we dismiss this petition. We now turn to Muhammad Hussain s application for bail learned counsel submitted that, at the highest, the case against Muhammad Hussain could fall under Part II of section 302, P. P. C., therefore, the High Court had erred in not granting bail. The second ground on which the High Court's order was assailed was that Muhammad Hussain was less than 15 years at the date of the occurrence. We are not impressed by either of those submissions. The firs submission is not fit to be entertained, because it relates to the appreciation of evidence and we cannot understand how this application can be pressed as the section 161, Cr. P. C. statements of the eye‑witnesses have neither been filed nor are they available with the learned counsel. As to the second submission, it is true that the petitioner, Muhammad Hussain, was admittedly a minor, but in refusing bail, the learned Judge observed; "As regards Muhammad Hussain petitioner, he is alleged to have inflicted two blows on the head of the deceased which is a vital part 'of the body. The blows caused by him proved fatal. In view of the role played by him in the occurrence I am not inclined to release him on bail on the ground of tender age. His petition is dismissed." In view of the admitted youth of Muhammad Hussain, the learned Judge could have granted bail, but the question was within his discretion and as it cannot be said that the learned Judge had exercised his discretion arbitrarily or capriciously in refusing bail, this petition too fails and is dismissed. Petition dismissed.