1. MUHAMMAD AKRAM, J.-This is a petition by Khadim Hussain com--plainant for special Leave from the order dated 21st August. 1977 passed by a learned Judge of the Lahore High Court at Lahore in Cr. Misc. No. 1667 /B of 1977, allowing bail to Idrees respondent No. 3 in a murder case registered against him along with Muhammad Hussain and two others under sec--tion 302/34, P. P. C.
2. Briefly stated, according to the F. I. R. Muhammad Hussain was annoyed with one Akbar Ali a Kammi of the village and had stopped him from passing by his house in the Bazar. In spite of this on the 14th of December, he took him to task and gave beating to him. Nevertheless once again at about 3.00 p. m. Akbar Ali persisted in passing by the house of the accusedwho got hold of pins and wanted to take him forcibly with them. On having the alarm the complainant Khadim Hussain along with his brother Muhammad Ismail deceased rushed to the spot for his rescue. In the meanwhile, so it is alleged, all the four accused namely Muhammad Hussain, Sultan, Amin and Idrees respondent armed with Sota opened the attack on them. Muhammad Amin, Muhammad Hussain and Idrees accused inflicted the sota blows on the back, right shoulder and arm of Khadim Hussain complainant. Sultan accused landed a blow at the head of Muhammad Ismail deceased who fell down as a result of it and then Muhammad Amin and Muhammad Hussain, also inflicted injuries on him after he bad fallen down tried to intervene but then all the four accused also belaboured him the with their sticks. Towards the end in the F. I. R.' it is admitted that complaint along with Muhammad Munir P. W. Also inflicted injuries on Sultan Muhammad Hussain, Muhammad Amin the injured (deceased) was removed to the where be eventually died during the night at about 2.00 a. m. F. I. R, in the case was afterwards registered at the instance of Khadim Hussain complainant on the 15th of December, 1975, at 2.30 a. m.
3. Ismail deceased had three injuries on him one of which on the head proved fatal while Khadim Hussain complainant had five and Munir P. W. 4 simple Injuries caused by blunt weapons on them.
4. On the accused side Muhammad Hussain had five, Sultan four and Amin 3, in all 12 simple injuries on them caused by blunt weapon.The bail application of all the four accused was dismissed by the Additional Sessions Judge, Lyallpur, on the 10th of May, 1977, in his opinion the F. I. R. Was lodged with promptitude, the accused were clearly named in it and specific role was also ascribed to them. He further observed that prima facie the accused acted in furtherance of the common intention of them all and besides causing the death of Muhammad Ismail deceased they also mercilessly belaboured his two companions and therefore, it was not possible to distinguish the case of one accused from the other.
5. Idrees respondent and Muhammad Amin then applied to the High Court for bail in the case. On the 21st of August, 1977, a learned Judge of the Lahore High Court at Lahore while allowing bail to Idrees respondent dismissed the application of Muhammad Amin accused. In his impugned order he observed that a "day prior to the occurrence", said Akbar Ali had passed in front of the house of the complainant party. When he was stopped by the accused he then reported the matter to his brother Muhammad Ismail deceased". It was on the `next day' that Khadim Hussain informant and Ismail deceased went to the accused to protest against their conduct. It is further observed in the impugned order that there were not less than 12 injuries on the accused party `which had not been explained in the F. I. R , and that the occurrence had taken place `in front of their home'. On the merits of bail application it was argued on behalf of the two accused before the High Court that the occurrence was sudden and unpremeditated in which both sides were injured and ultimately each accused would be liable for his own individual act. On the other hand the learned counsel for the State contended that the four accused were armed with deadly weapons and bad made a premeditated attack and each accused would be vicariously liable for the acts of all of them. But in the opinion of the High Court a deeper appreciation into the circumstances of the case could be made at that early stage, that nonetheless there was no explanation about the injuries to the accused. Idrees respondent did not cause any injury to the deceased and his case was therefore, distinguishable from the others. He was, therefore, allowed bail by the High Court. The complainant-petitioner herein then applied to the High Court for cancellation of the bail allowed to the respon--dent mainly on the ground that he was not afforded any hearing while allowing bail to him. But that application was dismissed in limine by the High Court on the 24th of August, 1972, inter alia, on the ground that the State was adequately represented at the time of the hearing of the petition in allowing bail to the respondent.
6. In this petition before us the learned counsel for the petitioner vehement--ly argued that some of the observations made in the impugned order passed by the High Court reproduced in the preceding para. Above were factually incorrect and bad been made contrary to the record. In the view of the matter, according to the learned counsel, the impugned order-passed by the High Court in allowing bail to the respondent was vitiated by misreading of the record resulting in miscarriage of justice between the parties. In the impugned order we find that these observations do not appear to be borne out from the record and the High Court had also erred in observing that there was no explanation in the F. I. R. About the injuries to the accused. Before us the learned counsel for the petitioner further laid stress that this case was registered against the four accused under section 302/34, P. P. C. And therefore, Idrees respondent was vicariously liable with the remaining co---accused for the murder of Ismail deceased. As such, according to the learned counsel, the High Court was not justified in law in holding that his case was distinguishable from these other accused.
7. We have carefully considered these arguments addressed before us on behalf of the complainant-petitioner. It appears to us that some of the observations made by the High Court are not in keeping with the record produced in this Court. Nonetheless, most of these discrepancies brought to our notice are immaterial and do not appear to have affected the impugned order passed by the High Court. But at the same time it cannot be vouchsafed with certainty that the erroneous observation by the High Court that there was no explanation in the F. I. R. About the injuries found on the person of the accused did not go to influence the mind of the learned Single Judge in releasing the respondent on bail.
8. We have, therefore, applied our own independent mind afresh to the facts and circumstances of this case. We find that on a careful perusal, the prosecution case disclosed in the F. I. R. Is that as the said Akbar Ali was passing by their house, all the four accused armed with soils caught hold of him at the place of occurrence and wanted to drag him to their house. It was on his alarm that Khadim Hussain complainant along with his brother Muhammad Ismail deceased ran out to the spot for his rescue. The four accused then attacked them. According to the sequence of events that followed. Muhammad Din, Muhammad Hussain and Idrees accused gay soils blows on the back, right shoulder and right arm of the complainant resulting in simple injuries to him. Sultan accused then inflicted a Soti blow on the head of Ismail who fell down and Muhammad Ismail and Muhammad Hussain gave one blow each with their soils' on his back after he had fallen down.
9. When Muhammad Munir P. W. Tried to intervene all the four accused then belaboured him. Except for the fatal injury attri--buted to Sultan accused at the head of Ismail all the remaining injuries suffered by the complainant party at the hands of the accused were simple in nature and not on any of their vital parts. On these allegations in the' F. I. R. It does not prima facie appear that the accused were sharing the common intention to cause the death of Ismail deceased and in the absence of any evidence recorded in the case, it is yet too early to hold Idrees respondent vicariously liable. He is merely attributed to have inflicted of the simple injuries found on the person of Khadim Hussain complainant. In this view of the matter we find that the respondent was entitled to bail and this petition has no force. It is therefore dismissed. But at the same time we would like to clarify that none of the observations herein contained shall prejudice any of the parties at the trial.