' The petitioner seeks cancellation of bail granted to Azhar Mahmood alias Muhammad Hanif, respondent No,1 by the learned Additional Sessions Judge, Chakwal vide his order dated 8-11-1990.
2. Respondent No,1 and his co-accused namely Manzoor Hussain, Muhammad Aslam and Muhammad Bashir are alleged to have launched a murderous assault on Muhammad Ali Shah and Muhammad Altaf, complainant. Respondent No,1 was stated to be armed with a Lathi and inflicted two blows on the head of Muhammad Iltaf. In all, the complainant received 10 injuries including 6 caused with fire-arm and 4 with blunt weapon. Muhammad All Shah was. Given 16 injuries including injuries Nos. 12 to 16 which were found to be grievous.
2. The petitioner's learned counsel contends that prima facie an offence under section 307/325, P.P.C. Was disclosed against respondent No,1 and the mere fact that he had caused simple injuries was not sufficient to hold otherwise. He submits that respondent No,1 was vicariously liable for the acts committed by his co-accused. He submits that the Court below wrongly observed that the question of application of section 307, P.P.C. And vicarious liability of the accused respondent No,1 needed further inquiry. The learned counsel for the State does not support the application for cancellation of bail and submits that respondent No,1 is merely alleged to have caused simple injuries to a P.W. The learned counsel for respondent No,1 defended the bail order on the ground that the individual role of respondent No,1 showed that he had never caused simple injuries to a P.W. In this connection he placed reliance on the cases of Muhammad Boota v. The State 1989 P Cr.
LJ 482, Mukhtar Ahmad v. The. State 1989 P Cr. L J 843 and Sajwara and another v. The State 1989 P Cr. L J 2387. He also added that. Respondent No,1 was found innocent in the second investigation conducted by All Muhammad D.S.P. As is evident by his Zimni No, 17, dated 2-12-1990. Lastly he submitted that the petitioner is not connected with the motive which is attributable to Bashir co- accused. In reply the learned counsel for the petitioner pointed out that in the last investigation conducted by Muhammad Bashir Malik, DSP respondent No,1 was found to be guilty as would be evident from Zimni No,18, dated 17-12-1990. He also pointed out that the finding of innocence recorded by Ali Muhammad DSP was not based on sound material, particularly when respondent No,1 had never raised the plea of alibi.
3. It appears that the learned Additional Sessions Judge granted bail to respondent No,1 without examining the relevant facts and the material on the record. The Court readily presumed that the question of application of section 307, P.P.C. And the vicarious liability of the accused needed further inquiry. Muhammad Iltaf complainant and Muhammad Ali Shah were attacked in the broad day light when they were going home on a tractor. Respondent No,1 and his co-accused were armed with deadly weapons like .12 bore gun, Lathis and iron Saria, jointly raised Lalkara to the effect that they would not be spared alive. The petitioner and Muhammad Ali Shah ran for safety when Manzoor Hussain fired at the petitioner causing injuries on his left thigh. He fell down, whereupon respondent No,1 inflicted blows on his head. Muhammad Aslam accused armed with a Lathi and Muhammad Bashir accused with a Saria inflicted a large number of blows to Muhammad Ali Shah P.W. The injured persons were rescued by Muhammad Nazar, Muhammad Razzaq and Jamat Ali Shah P.Ws. The complainant received a large number of injuries including the 6 injuries caused with fire-arm and 4 with blunt weapons. Similarly Muhammad Ali Shah was given as many as 16 injuries including 5 grievous injuries (injuries Nos. 12 to 16). Both the complainant as well as Muhammad Ali Shah narrowly escaped death. Prima facie, a case under section 307/325, P.P.C. Is disclosed against all the accused persons who appear vicariously liable. The finding of innocence recorded by Ali Muhammad DSP is of no avail to respondent No,1 because he was found to be fully involved in the occurrence in the first investigation conducted by the S.I. And the last by Muhammad Bashir Malik, DSP. The finding recorded by Ali Muhammad DSP does not appear to be based on sound material and reasoning. Respondent No,1 never raised the plea of alibi before any Court and the bail order is also silent about his plea of alibi. Muhammad Bashir Malik, D.S.P. Has given cogent reasons for holding respondent No,1 to be guilty. He has rightly pointed out in Zimni No,18 dated 17-12-1990 that he did not produce the owner of the flour machine where he had allegedly gone for wheat grinding. Moreover he had stated before him that no other person was present at the flour machine except the machine owners. Therefore, no witness could possibly depose to his presence there except the machine owner who was never produced before the investigating officer. The mere fact that motive is attributed to Bashir co-accused is not enough to doubt participation of respondent No,1 in the occurrence because Muhammad Aslam father of respondent No,1 is also involved in the case whose presence and participation in the occurrence was proved during all the investigations, although he is not directly connected with the motive.
Muhammad Iltaf petitioner/complainant is an accused in a case under section 307 in which Muhammad Bashir co-accused in the present case is the complainant. Hence the petitioner was made the first victim of assault, was fired at first and given a number of blows by respondent No,1 on the head, a vital part of the body. It was sheer good luck that he escaped death.
4. The judgments relied upon by the learned counsel for the respondent No,1 arc distinguishable on facts. In those cases the accused who did not cause any injury to the deceased but caused simple injuries to a P.W. Were allowed bail. Keeping in view the facts of the case in the said precedents, it was possible to hold that the accused who did not inflict any injury to the deceased probably did not share the common intention of the accused. However, in the present case, prima facie, the offence under section 307 is disclosed in respect of injuries caused to both the injured persons individually. Respondent No,1 had taken an active part in the occurrence and given Lathi blows on the head of the complainant. Hence the mere fact that he did not cause injuries to Muhammad Ali Shah, who had received grievous injuries at the hands of the co-accused is not sufficient to entitle respondent No,1 to concession of bail. The learned Additional Sessions Judge appears to have allowed bail to respondent No,1 arbitrarily without considering the relevant facts and keeping in view the principles governing grant of bail and precedents of superior Courts.
5. For the foregoing reasons I accept this application and cancel the bail granted to respondent No,1. He shall be immediately taken into custody.
6. In the end it is clarified that the observations made in this application are of tentative nature and shall not stand in the way of the trial Court to come to its independent opinion on the basis of the evidence adduced before it.