This is an application for bail on behalf of Abdul Wahid in a case tinder section 302/34, P. P. C.
Registered at Police Station Gulberg (Faisalabad) vide F. I. R. No. 36 dated 13th April, 1980.
2. The prosecution case is that the petitioner alongwith three others in furtherance of their common intention caused the death of Riaz Ahmad and simple injuries to Allah Ditta P. W. On 13th April, 1980 at Dhalli Deegerwela in the area of Saeedabad Colony.
The allegations against the petitioner are that he alongwith co--accused went to the shops of Mohammad Yaqoob and Chanan where the deceased and others were already present. The parties first exchanged soda-water bottles and when the bottles were finished, the deceased ran towards his house. He was followed by the accused party and was over--taken by them. The petitioner gave him 'Chhuri' blow in his right flank --and thereby caused simple injury as follows : ---A stab wound 3-I/2 cm x I cm x muscle on the right lumber region,"
It is alleged that Mohammad Yaqoob grappled with the deceased and Bashir Ahmad inflicted blow with 'Chhuri' on the right leg of the deceased and Niaz inflicted 'Chhuri' blow near right ear of the deceased. The injury caused by Bashir Ahmad co-accused proved fatal.
3. Post-mortem report shows that six injuries were found on the person of the deceased out of which injury No. 1 attributed specifically to Bashir Ahmad co-accused was found fatal which resulted in the death of the deceased.
4. Learned counsel for the petitioner contends :-
(i) that there are not reasonable grounds for believing that the petitioner in furtherance of his common intention has committed the murder of the deceased and in any case, the question of vicarious liability needs serious consideration.
(ii) that there is a delay of one year and four months in the disposal of the case.
5. As against this, learned State counsel assisted by learned counsel for the complainant submits :-
(i) that there is sufficient material collected by the police to connect the petitioner with the commission of the offence punishable under section 302 read with section 34, P. P. C.
(ii) that the allegation that the petitioner caused injury in the right flank of the deceased is supported by post-mortem report.
(iii) that in the case of petitioner, section 34, P. P. C. Stands attracted inasmuch as the petitioner had followed the deceased and thereafter inflicted injury on his person.
(iv) that blood-stained 'Chhuri' has been recovered from the petitioner.
(v) that it is not a case of inordinate delay and lastly.
(vi) that the petitioner is charged with the offence punishable with death or imprisonment for life.
6. After hearing learned counsel for the parties, I find that : --
(i) the petitioner although had accompanied his co-accused to the shops of Mohammad Yaqoob and Chanan where the deceased was already present, yet he did not open the attack straightaway.
(ii) that this case has its own peculiar circumstances inasmuch as the exchange of soda-water bottles between the complainant and the accused party had preceded the infliction of simple injury given by the petitioner to the deceased.
(iii) that the injury allegedly inflicted by the petitioner to the deceased is only muscle deep which prima facie has neither contributed nor accelerated the death of the deceased.
(iv) the petitioner is in jail for the last one year and four months and the early disposal of the case is not insight.
So far as the points raised by learned State counsel relating to the question of vicarious liability of the petitioner are concerned, these points can properly be appreciated at the time of trial. There is no denying that the alleged offence is punishable with death or imprisonment for life but at the same time, it is well recognized as held in Monzoor v. State (PLD 1972 SC 81that : ---bail is not to be withheld as punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
7. Without expressing any opinion lest it may prejudice the case of either party, I am of the opinion that in view of my findings mentioned in para 6 above, the question of the vicarious liability of petitioner needs further inquiry. The petitioner is allowed bail in the sum of Rs. 20,000 (twenty thousand) with one surety in the like amount to the satisfaction of Assistant Commissioner, Faisalabad.
Needless to add that expression of opinion, if any, being based on tentative assessment would not influence the mind of the trial Court.