NASIM HASAN SHAH, J.-This petition for cancellation of bail is directed against the order of the Lahore High Court, dated 4-11-1976, whereby respondent No. 1 was granted bail.
2. Brief facts of this case are that two or three months before the occurrence, Mst. Parveen (deceased), the petitioner's daughter, was teased by Gulzar, respondent. However, the matter was patched up as a result of the efforts of the people living in the Mohalla. On the day of the occurrence, namely, the morning of 19-12-1975, while Mst. Parveen Akhtar (deceased) was standing in front of her house, she was again teased by Afzal alias Kala accused whereupon she abused him. Kala accused left thespot after threatening to teach her a lesson for abusing him. Sometime later, at about 8/9 a. m., when the petitioner and her daughter were having their meal in the deorhi, Kala accused armed with a dagger and Gulzar, respondent. No. 1 suddenly entered the deorhi. The latter dragged Mst. Parveen Akhtar out of the deorhi. The petitioner attempted to rescue her daughter but she was given a dagger blow by Kala accused on her left hand. Meanwhile, Gulzar respondent caught hold of Mst. Parveen Akhtar and Kala accused then inflicted three blows with his dagger causing her death at the spot. Consequently a case under section 302/324/34, P. P. C.
Was registered against Afzal alias Kala accused and Gulzar, respondent, at Police Station Tandianwala, District Lyallpur, on 12-12-1975, at 9-30 a. m., at the instance of the petitioner. Both Kala and Gulzar were arrested and Gulzar, respondent applied for bail. His bail application was rejected 7 by the learned Additional Sessions Judge, Lyallpur, on 18-8-1976. However, the learned Single Judge in the High Court ordered his release on bail on 4-11-1976 on the. Grounds that the respondent was not armed, had no motive of his own, had not caused any injury to the deceased, and that the challan, against the respondent and his co-accused had been sent up to the Sessions Judge for trial.
3. Syed Talib H. Rizvi, the learned counsel for the petitioner submits that the impugned order granting bail to the respondent is bad in law since it has not been made in accordance with the correct legal principles governing the grant of bail. He contends that Gulzar, respondent colluded with his co-accused and played an active role in the transaction by catching hold of the deceased, while Afzal alias Kala inflicted the fatal blow. According the provisions of section 34, P. P. C. Were attracted to his case. It further contended that the mere fact that the challan in this case had been sent up to the Sessions Court for trial did not make it a case of further inquiry within the contemplation of the provisions of section 497(2), Cr. P. C.
4. In reply, Mr. Shahid Hussain Kadri submitted that in view of the insignificant role attributed to respondent No. 1, it was not possible to ascribe any common intention to the respondent; therefore, his case did not fall within the mischief of section 34, P. P. C. He further submits that even otherwise it would not be fair to send the respondent to jail after he has been on bail for about 14 months. He, finally, contends that this petition, in any case, appears to be not maintainable in view of the provisions contained in sub-para. (5) Of section 497, Cr. P. C.
5. The contentions raised by the learned counsel for the petitioner appear to have some force. In view of a specific role attributed t respondent No. 1 in the F. I. R. By an injured eye-witness, Mst.
Barkat Bibi, petitioner complainant, the provisions of section 34, P. P. C. Were, prima facie, attracted.
Even though the challan may have been submitted, no date has yet been fixed for the trial so far and the mere submission o the challan was not a ground on which bail would be granted. As for the plea that the respondent has been on bail for a considerable period, it is to be noted that the petitioner had filed this petition for cancellation of bail on 34-11-1976, i. e. 20 days after the announcement of the impugned order although it came up for hearing before us on 31-1-1978.
Since the petitioner promptly filed this petition, no advantage can be taken by the respondent for the delay in hearing this petition. Finally in our view, the provisions of section 497(5), Cr. P. C. Do not constitute a bar to a party proceeding if in this Court against an order of the High Court instead of applying is the same Court for cancellation of the bail. We, accordingly convert this petition into an appeal, set aside the order of the learned Additional Sessions Judge, Lyallpur, dated 4-11-1976, granting bail to respondent No. 1 and direct that he be taken into custody forthwith.