' Muhammad Hafeez Riaz lodged the F.1.R., on 23-9-1983, at 10-30 a.m., at Police Station Ravi Road.
The occurrence had taken place on the said date at 8-00 a.m. The complainant lived in the house of Muhammad Anwar as his tenant. The latter wanted to eject him from the house and a dispute arose between the two on that account. On the day of occurrence, at 7-00 a.m. Muhammad Anwar held out a threat to the complainant that he shall face serious consequences if he did not vacate the house on that day. On hearing the noise, Muhammad Hashmat and Muhammad Aslant P.Ws.
Came to the house of the complainant, sat in his courtyard and enquired as to what had happened. They were still there when at 8-00 a.m., Muhammad Anwar armed with Chhuri accompanied by his two sons Khalid Anwar armed with Chhuri and Khurshid Anwar armed with revolver entered the house of the complainant stating that they were going to get the house vacated and stepped towards him. Mat. Khalida Razia deceased (wife of the complainant) intervened whereupon Muhammad Anwar inflicted Chhuri blow, which hit the deceased on the right side of the abdomen. Khalid Anwar respondent caused injury to the deceased with Churri on the right knee. The deceased fell down. The complainant entered the house and brought out his licensed rifle. The accused started running and in that process, Khurshid Anwar fired revolver shot at the complainant but it did not hit him. The complainant chased the accused. Khurshid Anwar, while reaching in front of Bismillah Hotel in the main bazar, fired another revolver shot on the complainant and the later fired shot towards the accused in self-defence. The accused fled away.
The complainant took his wife to Ganga Ram Hospital, who succumbed to the injuries on reaching there.
2. Mat. Hamida Begum wife of Muhammad Anwar got a cross-case registered under section 307/34, P.P.C. On the aforesaid date in respect of injuries to her husband. The offence was subsequently amended to 302/34, P.P.C. On the death of Muhammad Anwar.
3. Khalid Anwar and his brother Khurshid Anwar moved petition for bail before arrest. The bail petition of Khalid Anwar was dismissed by the learned Additional Sessions Judge, Lahore, on 6-10- 1983. Khurshid Anwar was, however, allowed bail. A detailed order had been passed and the contentions of both the parties had been considered at length. After his arrest, Khalid Anwar moved petition on 8-11-1983, which was accepted by the same learned Additional Sessions Judge, on 29-11-1983. Aggrieved by the said order, Muhammad Hafeez Riaz complainant filed this petition under section 497(5), Cr.P.C. For the cancellation of bail of Khalid Anwar respondent-accused.
4. It was contended by the learned counsel for the petitioner that the respondent and co-accused Muhammad Anwar (since dead) and Khurshid Anwar trespassed into the house of the complainant armed with Churries and revolver and thus the provisions of section 34, P.P.C. Were clearly attracted in the case; that although one injury had been ascribed to the petitioner, but in fact he had caused three injuries as stated by the other two eye-witnesses, namely, Hashmat and Muhammad Anwar and the remaining injuries had not been witnessed by the complainant as he had entered his room to bring rifle; that injury attributed to the respondent was not simple in nature; that blood-stained Chhuri had been recovered from the respondent and it was a corroborative piece of evidence against him; that after refusing bail to the respondent on 6-10- 1983, the learned Additional Sessions Judge committed illegality in allowing bail to the respondent after one and a half months; that Muhammad Hafeez complainant, who was accused in the cross- case, was declined bail by the same learned Additional Sessions Judge.
5. It was contended by the learned counsel for respondent that there were two versions of the same occurrence and it was yet to be determined as to which version was correct and thus the case of the respondent was covered under section 497(2), Cr.P.C.; that the two injuries were found on the person of the deceased when examined in Ganga Ram Hospital; that injury attributed to the respondent was simple in nature and it was not on any vital part of the body; that learned Additional Sessions Judge could legally allow ball to the respondent even after the rejection of the earlier bail petition.
6. It is provided under section 497(1), Cr.P.C., "when any person accused of any non-boilable offence is arrested or detained without warrant by an officer in charge of a Police Station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused." The words "the offence of which he is accused" were substituted by the words" an offence punishable with death or transportation for life" vide amendment by section 136 of the Code of Criminal Procedure (Amendment), Act, 1923 (Act XXVIII of 1923). The words "transportation for life" were substituted by words imprisonment for life or imprisonment for ten years" vide amendment by section 2(1) (item 18 of Schedule) of Criminal Procedure (Amendment) Act, 1974.
Third proviso to section 497(1), Cr.P.C. Was added vide Code of Criminal Procedure (second amendment) Ordinance 71 of 1979, stating, "Provided further that the Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail.--(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not been concluded; or (b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not been concluded." Due to addition of third proviso to section 497(1), Cr.P.C., Courts have become liberal in the matter of bail even in cases which are punishable with death or imprisonment for life. In such cases bail is being allowed as if those are hurt cases. It appears that the matter has been reconsidered very recently and another proviso has been added by Ordinance 32 of 1983 dated 26-12-1983 stating, "provided further that the provision of third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of Court, is a hardened, desperate or dangerous criminal." But this proviso would also not serve the purpose. Some amendment in the nature of section 426(1-A), Cr.P.C., shall have to be made.
7. It has also been noticed that a tendency has cropped up in the judicial officers that after refusing bail, on subsequent application, bail is allowed without fresh grounds, in serious offences like murder. No doubt, bail is a discretion but it goes without saying that this discretion is to be exercised judiciously and not capriciously or arbitrarily. This Court Ordinarily does not interfere in the exercise of the discretion by the lower Courts but each petition for cancellation of bail is to be judged and decided on its own merits and where it is found that the lower Court exercised discretion arbitrarily, this Court cannot allow such order to stand. The facts of the instant case have been narrated above. The two orders dated 6-10-1983 and 29-11-1983 have been perused. The learned Additional Sessions Judge wrote down the contentions of the counsel for Khalid Anwar and Khurshid Anwar petitioners in the earlier order dated 6-10-1983. It was contended before him that since there was a cross-version and the aggression was still to be decided which called for a further probe as to implication of the petitioner in the crime; that since the injuries on the person of Anwar, who was the main accused in the case had been suppressed so that also be read to bring the case within the purview of section 497(2), Cr.P.C; that Muhammad Anwar the main accused who gave the fatal injury to the deceased had now died and the only role attributed to Khalid Anwar petitioners was that of a simple blow and his implication under head of section 34, P.P.C.
Was to be seen at the trial. Repelling the contentions of the learned counsel for Khalid Anwar, the learned Additional Sessions Judge made the following observations in the order dated 6-10-1983:- "I have myself gone through the record and arguments of both the parties carefully. Admittedly the occurrence in this case took place on 23-9-1983 at about 8-00 a.m., as incorporated in the F.I.R.
Where Mst. Khalida Razia Begum is victim. She received a fatal blow from Muhammad Anwar who has himself now died and also received a simple blow from Khalid Anwar petitioner. The defence treats both the occurrence as a cross-version against each other which has been doubted by the learned counsel for the complainant and the present is not a stage to decide the same.
' Khalid Anwar petitioner is named in the F.I.R. With an active role of having given a Chhuri blow to the victim which is yet to be recovered from him which is material, so in the given circumstances he has got no case for bail before arrest. The petition to his extent is hereby dismissed."
' After giving details of the occurrence and the contentions of the learned counsel for the parties, the learned Additional Sessions Judge passed the following order on 29-11-1983:- "I have myself gone through the record and arguments of both the parties carefully.
' Muhammad Anwar, the co-accused of the petitioner, admittedly received the fire-arm injury at the hand of the complainant Hafeez Riaz in the Bazar and the same has not been denied by the prosecution even as a case on the aspect now under section 302, P.P.C. Has been registered where the complainant of this case is in jail as an accused. The complainant then suppressed his own role of having given injuries to Muhammad Anwar. He even named Khurshid Anwar another brother of the petitioner in this case and it was conceded before me that he too has been found innocent and both these aspects were specially relied on by the defence to doubt the implication of the present petitioner in this crime so as to call for further probe as to his implication. The perusal of the F.I.R. Shows that the petitioner gave a solitary blow to the victim which did not prove fatal and was on her leg only and the first examination of the victim so proved whereas in the post-mortem report some more injuries were also found which were not attributed to the petitioner in the F.I.R.
Being the first version, so the same was also read to call for a further probe as to the implication of this petitioner in this crime. Worst in the F.I.R. The only role attributed to him is that a simple blow and so his implication has been asserted under the head of vicarious liability which as stated above is a matter to be seen at the trial. The petitioner is in jail and is only to join the trial. His co- accused in this F.I.R. Was found innocent. The complainant admittedly concealed his own role and these facts definitely call for a further probe as to the implication of the present petitioner in this crime and so I feel that the petitioner is definitely entitled to the concession of bail so he is admitted to bail in the sum of Rs,10,000 with two sureties each in the like amount to the satisfaction of this Court."
8. It has been noticed that in the earlier petition for bail before arrest, the contentions of the learned counsel for Khalid Anwar that there was cross-version of the aggression which was still to be decided; that the injuries on the person of Anwar who was main accused in the case had been suppressed; that only role attributed to Khalid Anwar was of a simple blow; and that his implication under the head of section 34, P.P.C. Was to be seen at the trial, were not accepted by the learned Additional Sessions Judge. In the subsequent order dated 29-11-1983, bail has been allowed mainly on the grounds that the complainant suppressed his own role of having given injury to Muhammad Anwar; that the petitioner gave a solitary blow to the victim which did not prove fatal and was on her leg only and that the implication of Khalid Anwar under the head of vicarious liability was a matter to be seen at the trial. The learned Additional Sessions Judge had taken contradictory views in passing the two orders dated 6-10-1983 and 29-11-1983.
9. The fact that Khurshid Anwar co-accused was found innocent did not entitle the respondent- accused to be released on bail. On the basis of that finding of the Investigating Officer, only Khurshid Anwar could derive benefit out of it. It appears that the statements of the two eye- witnesses, namely, Muhammad Hashmat and Muhammad Aslam P.Ws. Recorded under section 161, Cr.P.C. Were not perused. Both of them had attributed more blows to the respondent. Muhammad Hafeez Riaz complainant could not see all the injuries of the deceased as he had rushed into his house after the deceased fell down, in order to bring his licensed rifle. The deceased had fallen on the ground after the receipt of two blows. She had been inflicted more blows while she was lying on the ground. The intention of the accused can be gathered from the motive, the weapon of offence, the seats and nature of injuries inflicted on the deceased. In the instant case both Khalid Anwar respondent and his father Muhammad Anwar were armed with Chhuris. Five injuries had been inflicted to the deceased with sharp-edged weapon as was evident from the post-mortem report.
Injury No,1 was on the right side of lower abdomen. Intestines were protruding out of the wound.
Injury No,3 was on the left side of lower abdomen. Injury No,5 was on upper mid right scapula.
These injuries were on the vital parts of the body. The doctor did riot mention in the post-mortem report that injuries Nos. 2 to 5 were simple in nature. It was opined by the doctor that injury No,1 alone and in combination with other injuries, was sufficient to cause death in the ordinary course of nature. Death was due to shock and haemorrhage. Khalid Anwar respondents and his father Muhammad Anwar armed with Chhuris and his brother Khurshid Anwar armed with revolver had entered the house of the complainant and the murder of Mst. Khalida Razia Begum was committed. In view of this allegation prima facie provisions of section 34, P.P.C. Were attracted.
' Bail had been allowed to the respondent arbitrarily and discretion had not been exercised judiciously, which calls for interference from this Court. For the reasons stated above, the petition is accepted and the bail of the respondent is cancelled.