1. ' SHAHID ANWAR BAJWA, J.---One Haji son of Bachoo, Sheede by caste, on 8-5-2005 at 1830 hours lodged F.I.R. At Police Station Sajawal, under sections 302, 147, 148, 149, 109 and 504, P.P.C. After narrating previous incident of friction, the complainant stated that on 7-5-2005 he and his son Ibraheem had gone to Sajawal and while they were returning from Sajawal they laid down on Googri and thereafter they were proceeding to their village by foot through link road when at about 5-45 p.m. Ismail (applicant No,1), Majeed (applicant No,2), Ali Muhammad (applicant No,3), Baboo son of Haroon and Baboo son of Nathu (applicant No,4) waylaid them. Applicant No,4 was stated to be having a pistol in his hand. After some exchange of words Baboo son of Nathu is alleged to have fired at Ibraheem son of the complainant, which is stated to have hit Ibraheem on his legs and Ibraheem fell down, upon which applicant No,1 gave hatchet blow on head of the said Ibraheem, applicant No,2 gave hatchet blow on left-arm of Ibraheem and applicant No,3 and Baboo son of Haroon caused side hatchet injuries, which hit him at head as well as other parts of his body. While Baboo son of Haroon was not challaned, the four applicants were challaned and final challan was submitted on 30-5-2005.
2. ' Accused were arrested. Charge was framed on August 23rd, 2005. First bail application was rejected on 2-11-2005. After a lapse of four years, second bail application has been filed and this bail application has been dismissed by trial. Court vide order, dated 22-6-2009, for the following reasons:-- "It appears that the applicants/accused are nominated in the F.I.R. With specific role of causing injuries to deceased Ibrahim.. The incident appears to have been reported to police without any delay on the same day when the incident took place. There are specific allegations against the applicants/accused for causing injuries to deceased Ibrahim. The crime weapons i.e, hatchets have been recovered from the accused persons. The version given by the complainant is supported by the eye-witnesses in their 161, Cr.P.C. Statements as well as by Medical Officer. The incident appears to be preplanned one.
3. ' It also appears that the applicants/accused had come at vardat with common intention to commit murder of deceased Ibrahim and had caused him injuries, therefore, they are equally responsible as co-accused Ismail for committing the murder of deceased Ibrahim. From the perusal of record it appears that there is nothing on record even to indicate that the complainant party had falsely implicated the applicants/accused on account of enmity. The evidence of complainant Haji has been recorded by this Court on 24-5-2006 and he fully supported the case of the prosecution and also implicated them in the instant crime.
4. ' The other ground agitated by the counsel for the applicants/ accused are that they are in custody since date of arrest viz. 15-5-2005 and their case falls under hardship. In my humble opinion this ground is also not helpful to the present applicants/ accused for grant of bail as after submission of challan in Court the applicants/accused engaged their counsel on 22-5-2005. Charge against the applicants/accused was framed on 23-8-2005. Evidence of the complainant Haji was recorded on 24-5-2007, thereafter the counsel for the applicants/accused remained absent on even dates of hearing before this Court. From the case diaries it appears that though P.Ws. Are attending the Court but the learned counsel for the applicants/accused remained absent on the dates of hearing. In my humble opinion since the P.Ws. Had been attending the Court but the counsel for the applicants/ accused remained absent to proceed with the case therefore the ground of hardship would not available to him".
5. Learned counsel for the applicants stated at the outset that he does not press bail application in respect of applicant No,1 Mr. Ismail. He did not even press bail application in respect of said Ismail before Trial Court. Therefore, this application in respect of applicant No,1 Ismail son of Abdullah is rejected.
6. ' Regarding the other accused about applicant No,2, the learned counsel pointed out that Majeed is accused of giving a hatchet blow which hit deceased on his left arm. Ali Hassan is accused of giving back side hatchet blows, which hit Ibraheem on head as well as on other parts of body and applicant No,4 Baboo son of natho is alleged to have fired pistol-shot at the deceased, which hit him on his legs. Learned counsel referred to the post-mortem report, wherein the following injuries are recorded:-- ' Incised wound measuring about 9 and 1/2 c.m. x 2 and 1/2 c.m. And cavity deep on the perito- occipital region of the skull.
7. (2)Incised wound measuring about 8 c.m. x 2 c.m. And bone deep on the left forearm just below the elbow joint.
(3) Incised cut measuring about 2 and 1/2 c.m. And 0.1 c.m. And skin deep on the posterior aspect of left thigh.
(4) Abrasion 2 c.m. x 0.1 c.m. And skin deep with anterior aspect of left lower leg just blow left knee joint.
8. (4A) Penetrating wound with inverted margin about 1 mm x 1 mm and skin deep on the interior aspect of right lower leg.
9. (4B) Penetrating wound with inverted margin 1 mm x 1 mm and skin deep 1 c.m. Away from injury No,5 on the lateral side of injury No, 5 .
10. ' In his opinion, the Doctor stated that cause of death is cardiorespiratory failure due to heamorrhage, incised injury at the head, is sufficient to cause death. About injury Nos. 5 and 6, the Doctor observed that they were caused by fire-arms.
11. ' Learned counsel for applicants submitted that injuries allegedly caused by applicants Nos. 2, 3 and 4 did not contribute to death of the deceased and nature of injuries clearly indicates that there was no intention to cause death. He further submitted that the applicants have been languishing in jail for more than four years, He submitted that applicants Nos. 2 to 4 are innocent. He relied upon case of Shah Nawaz and another v. The State and another reported in 2008 SCM R 1436.
12. ' Learned A.P.-G. Stated that delay in disposal of case is not a ground for grant of bail and moreso because as much as 45 adjournments have been obtained by the accused persons. He relied upon Bhooro and another v. The State, 2003 M LD 125 and Muhammad Bashir and others v. The State 2004 PCr.L.I 1760.
13. ' I have heard learned counsel. In the case of Shah Nawaz (Surpa) one Shah Zaman succumbed .To his injuries. Five persons Shahnawaz, Altaf, Sarfraz, Asif, Yaqoob and Younis were accused. Bail was allowed to Altaf, Sarfraz and Asif for the reasons that Shahnawaz appeared to be responsible for causing injuries on skull of deceased Shah Zaman by means of sharp-cutting weapon like a dagger, whereas Yaqoob and Younis caused sota injuries on the left arm and left leg and clavicle of the deceased. This order of Peshawar High Court was assailed in the honourable Supreme Court.
14. Three other accused as stated above were granted bail by the High Court, but Younis and Yaqoob were refused bail. Honourable Supreme Court observed as under:-- "It was in this perspective that while assessing the role played by accused Asif, Sarfraz and Altaf, High Court exercised the discretion of grant of hail in their favour. Bail was, however, declined, as observed earlier, in respect of Shahnawaz, who was found prima facie, responsible for causing incised wound on the skull of the deceased which seemed to be fatal. From the record, we find that the cause of death, as certified by Medical Officer in the post-mortem report, appears to be head injury plus multiple fractures and haemorrhage (probably from all vessels). Prima facie, it appears that there were fractures on both forearms, left humerus and left patella and wound on right forearm and left leg, but the fact remains that while examining the role of petitioner Shah Nawaz, his case would be distinguishable from rest of the accused and, in our opinion, he was rightly found not entitled to grant of bail. As regards, the role played by petitioners Younas and Yaqoob, their presence at the time of occurrence cannot be disputed as would be reflected from the F.I.R. Of the counter-case. Injuries inflicted by them prima facie do- not appear to have directly contributed to the immediate cause of death of the deceased.
15. ' Both the petitioners are behind the bars for the last more than eight months without the fate of trial in near future, as according to the State counsel three accused are still absconding and at large. Learned counsel for the complainant and the State are not in a position to distinguish the case of petitioners Younus and Yaqoob from those in whose favour discretion of grant of bail has been exercised by the High Court. Tentatively assessing the material on record, we are of the view that the case of Younas and Yaqoob would call for further enquiry and they deserve their release on bail also on account of identical part played by them with those who have been admitted to bail. This approach would be legally justified on the principle of consistency.
16. ' For the aforesaid facts and reasons, Criminal Petition No, 107 of 2005 filed by accused Shah Nawaz is dismissed whereas Criminal Petition No, 123 filed by accused Yaqoob and Younas is converted into appeal and allowed. Impugned judgment is set aside to their extent. They shall be released on bail, subject to solvent surety in the sum of Rs,2,00,000 each to the satisfaction of the trial Court".
17. ' Referring to the case-law relied upon by learned A.P.-G., in Bhooro's case Mr. Justice Ghulam Rabbani, acting as single Judge of this Court (as his lordship then was) the case involved six persons armed with hatchets, waylaying the other party, in which one person was killed. It was pleaded, that different roles played by different persons and the High Court relying on the doctrine of vicarious liability observed that since accused had caused injuries in such a manner that gravity of their wrongful acts cannot be lost sight of. Bail application was rejected. In Muhammad Bashir's case (supra) a single Judge of Lahore High Court observed that parties knew each other before the occurrence, there is no question of mistaken identity and mere non-recovery of weapon of offence is no ground for grant of bail.
18. In the present case Majeed's role is that he gave hatchet blow which hit at the left arm of the deceased. The Medico-legal report says that injury on the left-arm measured 8 c.m. x 2 c.m. And was bone deep. Doctor's opinion, is that cause of the death is cardio-respiratory failure due to haemorrhage, although head injury alone, in opinion of Doctor, was also sufficient to cause death.
19. Therefore role of Majeed is causing a serious injury which was bone deep, cannot be lost sight of.
20. Therefore, bail application to the extent of applicant No,2 is dismissed.
21. So far as Ali Hassan, applicant No,3, is concerned he is stated to have given backside hatchet injury to Ibraheem, which hit him on head as well as other parts of his body. In the post-mortem report there is no specific mention of any breaking of the skull by blunt weapons and injuries on the legs are said to be only skin deep. If he wanted to kill why would he give blows with backside of hatchet?
22. In case of Baboo, he is said to have fired pistol-shots, but both injuries are said to be 1 mm x 1 mm and only skin deep. Therefore, in my opinion the applicants Nos.3 and 4 are entitled to bail respectfully following dictum of the honourable Supreme Court in Shahnawaz's case. I, therefore, admit applicants Nos.3 and 4 to bail in the amount of three hundred thousand (300,000) each with P.R. Bond and one surety of the like amount to the satisfaction of Trial Court and dismiss application to the extent of applicants Nos.1 and 2. Needless to observe that the above conclusions are only tentative in nature and trial Court shall, in any manner whatsoever, be influenced by the above observations.
23. ' Criminal Bail Application No,948 of 2009 is disposed of in the above terms.