1. NASIM HASSAN SHAH, J.-This is an unusual case. The petitioner was an undertrial prisoner against whom a case stood registered under the Arms Ordinance. He was taking the Police party to effect its recovery from the spot where the weapon of offence was concealed. He was in handcuffs and the handcuffs were tied to the belt of Abid Hussain, Head Constable. When the party reached near a well, in village Mohrri Khattran, about 10J kilometers from the police station, the petitioner gave a violent push to Abid Hussain, Head Constable, in order to extricate himself and to make good his escape. Unfortunately, there was a well near the spot where Abid Hussain was pushed. He fell into the well and as the belt fastened did not give way the petitioner, therefore, also fell on top of the Head Constable into the well. The Head Constable was severely injured and succumbed to his injuries in the hospital sometime later. The petitioner was also injured in this State of affairs, a case was registered against the petitioner under section 302, P. P. C. He applied for bail which was rejected by the High Court, by its order dated 3-I1-1979. Hence the petition for leave to appeal.
2. Qazi Muhammad Saleem, learned counsel for the petitioner, firstly criticizedaspects of the prosecution story but mainly contendedthat even if the facts, as alleged by the prosecution, be taken as correct even A then only case under section 304-A, P. P. C. Was made out. The last entioned provision is in the following terms: - "304-A. Whoever cause the death of any person by doing am rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to four years, and shall also be liable to fine."
3. According to the learned counsel, the act of the petitioner was at best a rash and negligent and not amounting to - culpable homicide and maximum punishment, therefore, was four years' R.' 1.
4. He submitted that the petitioner, who had already been in custody for more than 14 months was entitled to bail, Mr. Rashid Aziz A.A.-G, on the other hand relied on the definition of murder contained in section 300 and relied' on clause "fourthly" which is to~ the following effect:--- "300, fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause .Death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid," and submitted that in view of the above, the petitioner would be guilty of murder.
5. We do not think it appropriate at this stage to give any opinion as to what offence will be committed, on the facts stated, as that would amount to usurping the jurisdiction of the trial Court.
6. We are, however, not impressed by the argument of the learned counsel for the petitioner that on the facts stated the act committed was only a rash and negligent act wherein there was no intention to cause death. However, these are matters which we would rather leave to the trial Court and agree with the High Court that the petitioner being responsible for causing injuries as well as the death of Abid Hussain, H.C., he was not entitled to the indulgence of bail. Moreso, when be was an accused of another offence and investigation was taking place and he was being led to effect the recovery of the crime-weapon.
7. Lastly, Qazi Muhammad Saleem submitted that the petitioner is entitled to the indulgence of bail on the ground of delay. The incident took place on 5-7-1979 and counsel submitted that although more than 14 months had elapsed no progress has been made in connection with the trial. This aspect of the case has not been considered by the Courts below and we are not inclined to go into it for the first time in the present proceedings.
8. This petition fails and is dismissed hereby.