This is a petition for cancellation of bail of respondents Ramzan, son of Yasin and Ashraf, son of Baggu who had been granted bail by the learned Sessions Judge, Faisalabad, vide his orders dated 5th April, 1981 and 6th May, 1981 respectively, in F.I.R. No. 176, dated 11th November, 1980, under section 302/452/148/149, P. P. C.
2. The allegations against the respondents are that they, alongwith five others, while armed with dangs and barchhis, entered the house of the complainant and caused injuries to Muhammad Ashraf deceased, complainant Muhammad Asghar. Shamim Akhtar P. Ws.; Maqbool. Mst. Zainab and Munir. Muhammad Asghar received five injuries, Shamim Akhtar, Ali Ahmad and Mst. Zainab one injury each while Munir and Maqbool two injuries each. Muhammad Ashraf, son of Baggu respondent is alleged to have given a sota blow which caused injury on the lip of Muhammad Asghar while Ramzan is alleged to have caused injury on Shamim Akhtar's right knee. Both the injuries were found to be simple.
3. The learned counsel for the petitioner has contended that the order of -the learned Sessions Judge granting the bail to the respondents is not maintainable for the reasons that it was a case of common intention and section 149, P. P. C. Was applicable. He has argued that irrespec--tive of the fact as to what part has been played by the respondents their very presence is enough to become members of unlawful assembly. According to him they are liable of the acts of their companions and no benefit could be given to them even at the bail stage of the fact that they had not caused any injury to the deceased. He has placed reliance on Mumtaz Ali v. The State (1979 P Cr. L J 350), Nazir Muhammad v. The State (PLD 1978 SC 236) and Munawar v. The State (1981 SCMR 1092).
The learned counsel has also pointed out that the learned Sessions Judge while granting bail to Ashraf respondent has wrongly recorded that he had not caused any injury to any body during the occurrence.
4. On the other hand, the learned counsel for the respondents have argued that even at the bail stage tentative assessm ent of the prosecution evidence can be done in view of the parts allegedly played by the respon--dents. His main argument is that if the principle of section 149, P. P. C. Is accepted in strict sense then the enabling provisions of section 497, Cr. P. C. Will have no meaning because if the parts played cannot be looked into and everybody is held liable for the acts of his co-accused concession of bail would not have been considered ever. He has placed reliance on Muhammad Akbar and others v. The State (1978 SCMR 7), Khadim Hussain v. The State (1978 SCMR 146) and Khali.d Javid Gillan v. The State (PLD 1978 SC 256).
5. The learned Sessions Judge while granting bail to Ashraf respondent has not mentioned the fact that he caused simple injury to Muhammad Asghar. It is argued that his case still remains at liar with the case of Ramzan respondent and this omission on the part of the learned Sessions Judge does not worsen the case of Ashraf respondent.
6. I have gone through the authorities cited by the learned counsel and considered the arguments.
The case of Mumtaz Ali v. The State is not applicable to the facts of the present case. In that case the petitioner was alleged to have caused also injuries to the deceased which is not the position in the case in hand:
7. The facts of the case Nazir Muhammad v. The State were different. In that case the petitioner who was refused bail was alleged to have been armed with a gun and it was alleged that he had fired twice and injured one P. W. Their Lordships of the Supreme Court held that provisions of section 34, P. P. C: were attracted to the case and dismissed the petition for bail.
8. Similarly in the case of Munawar v. The State the petitioner was alleged to have been armed with a gun and had fired a shot which hit the complainant. Their Lordships of the Supreme Court rejected the petition of the petitioner on the ground that section 34, P. P. C. Was applicable.
9. A careful consideration of these authorities makes a position clear that where a fire-arm weapon is used and in such cases it is difficult to assess that when a person fires and actually hits somebody he would not have the intention of committing murder. The shot of the accused could have caused the death and the shot of the person which caused death could have only caused injuries. The assessm ent is to be done on the basis of the acts done and when a person is firing it is difficult to assess that he is firing with an intention of causing simple injuries. The position in the present case is that the respondents were armed with dings and as such their acts done can be assessed in the light of the injuries caused by them.
10. The matter has also been considered by their Lordships of the Supreme Court in Muhammad Akbar and others v. The State and Khadim Hussain v. The State, mentioned above. Their Lordships after consideration granted bail to the petitioners who had allegedly caused simple injuries to the P. Ws. And the complainant. It has also been observed that it was too early to hold the respondents with vicarious liability for offences of murder in the absence of any evidence having been recorded.
The fact of the respondents having caused simple injuries to the person of the complainant was not considered as evidence of the fact of liability under section 149, P. P. C.
11. There is no allegation that any of the respondents had made any attempt of causing any injury to the deceased. Nor is there any allegation that the respondents made any effort to cause any injury to any of the P. Ws. Except the injuries caused to Muhammad Asghar and Shamim Akhtar both of which were found simple. The facts, of the authorities cited by the learned counsel for the petitioner are not applic--able to the facts of the case of the respondents. The fact is also in my view that this is not a petition for bail. It is a petition for cancellation of bail. In a petition for cancellation of bail the higher Courts will only interfere if the discretion exercised by a lower Court is arbitrary or illegal.
12. Having gone through the facts of the case and orders of the learned Sessions Judge, I do not see that the discretion has been exercised wrongly. The mere fact that the learned Sessions Judge failed to record, while granting bail to Ashraf, that he had caused simple injury to a witness, does not cast any shadow on the judgment of the learned Sessions Judge because the learned Sessions Judge had granted bail mainly on the ground that Ramzan co-accused had already been admitted to bail. Even if the fact of Ashraf respondent having caused any injury to a witness had been brought to the notice of the learned Sessions Judge the result would have been the same.
13. For the reasons narrated above, I do not find any material to interfere with the order of the learned Sessions Judge. The petition is dismissed.