' This is an application under subsection (5) of section 497, Cr. P. C. For cancellation of bail of Nazir, Nawab, Siddique and Wazir respondents Nos, 2 to 5 who along with three others have been charged for the offences of murder, attempted murder and rioting etc. Under section 302/307/i48/149, P. P. C.
2. For the reasons to follow presently, it will be unnecessary to encumber this order with a precise detail of the circumstances surrounding the occurrence resulting in a number of injuries to Khushi Muhammad son of Boga, Khushi Muhammad son of Sikandar, Akbar Ali and Liaqat Ali P. Ws. And death of two persons, namely Hajiran Bibi and Riasat Ali. Nazir and Nawab respondents No, 1 and 2 were admitted to bail by learned Additional Sessions Judge on 11th of February 1978 while the remaining two respondents were allowed bail by means of order dated 27th of February 1978. The respondents are named in the First Information Report. Nazir and Nawab respondents (2 and 3) were armed with sailas, Siddique had a hatchet and Wazir was armed with a sota. Nazir, Nawab and Wazir had allegedly dealt injuries to Akbar P. W. Siddique respondent No, 4 had caused injuries to Khushi Muhammad son of Boga P. W. Admittedly, the respondents hadnot caused any injury to the two deceased and the injuries suffered by the prosecution witnesses at the hands of the respondents were simple in nature. Having based himself on the judgment in Mahla and others v.
The State (1) which was affirmed by their Lordships of Supreme Court in a recent case Muhammad Akbar v. The State and another (2). Learned Additional Sessions Judge held the view that prima facie the respondents do not appear to have committed an offence punishable with death.
3. A single contention was raised by learned counsel for the petitioner in support of the petition that it is not a universal proposition capable o being applied to all variety of cases by way of routine that the accused who had actively participated in the occurrence and had caused injuries to th witnesses which were simple in nature but had not assaulted the deceased A must always be released on bail. Where an armed assembly goes to achieve an object, may be assaulted only, the members of the assembly will be presumed to have the knowledge that death may be caused, and if death is caused, they all would be guilty of murder. The question of constructive object which was apparently borne out by the data available at this stage could not be ignored for decision of bail. Precise degree of culpability of the petitioners who had as members of unlawful assembly actively participated in the occurrence and, had used lethal weapons in dealing injuries to the witnesses which related to merits of the case could not be decided even tentatively by learned Sessions Judge. In cases punishable with death, accused cannot be released on bail if there appear reasonable grounds for believing that he was guilty of the charge. Reasonable grounds for believing are not to be equated with proof.
4.- As against it, learned counsel for the respondents contended that both the deceased had died due to firm arm injuries. Chiragh who had fired at the deceased had appeared at the scene of occurrence during the incident. The respondents did not know that Chiragh will come armed with gun and fire at the deceased. Rule of constructive liability should not be applied readily and pushed too far. Learned Additional Sessions Judge had exercised his discretion on sound judicial principles. The impugned order was not liable to interference even if High Court may feel disposed to take a different view.
5. The contention on the side of the petitioner cannot be sustained. There are a number of authorities in support of the view that the case of the accused who had not caused injuries to the deceased and was responsible for having caused simple injuries to the witnesses is distinguishable from that of the accused who had assaulted the deceased. The judgments relied on by learned Sessions Judge sustain his view. Learned counsel for the petitioner has referred to recent judgment of Supreme Court in Abdur Rashid and another v. The State (3), in support of the contention that respondents Nos, 2 to 4 will be held responsible for the murder of the two deceased on the basis of constructive liability. This judgment deals with the question of ultimate finding of conviction against the accused and not that of bail. The fact that' Chiragh Din armed with a gun had subsequently emerged at the site where the fight was in progress tilts the scale in favour of the argument that case against the respondents was that of further inquiry under subsection (2) of section 497, Cr. P.
C. Or there was a doubt if there were reasonable ground C for believing that the respondents were guilty of an offence punishable with death/life imprisonment which doubt must be resolved in favour of the respondents. Orders of learned Additional Sessions Judge releasing the
(1) 1976 P Cr. L J 1059 -(2) 1978 SC MR7
(3) 1978 SCM R 45 respondents Nos, 2 to 5 on bail cannot be .Termed as unreasonable or arbitrary or without jurisdiction. .