MIR HAZAR KHAN KHOSO, J.---On 21-12-1994 leave to appeal was granted to the appellant "to consider whether the accused respondents are entitled to avail the- concession of bail which was allowed to them on the alteration of charge under section 316, P.P.C. Notwithstanding the fact that subsequently the Trial Court on the basis of material placed before it framed a charge against them under section 302, P.P.C. And whether the learned High Court has exercised its discretion in refusing to cancel the bail allowed to the accused respondents on sound judicial principles on the facts and circumstances of the case".
2. The facts giving rise to this appeal are that on 17-6-1993 F.I.R. No,167 for offence under section 102, P.P.C. Was registered at Police Station Manga Mandi Lahore. Muhammad Anwar deceased, Muhammad Jameel, Muhammad Ashraf, Nazir Ahmad, Muhammad Ameen, Amanat and Abdullah were arrested. It is case of the complainant that respondents Shafqat Bari, Muhammad ljaz, Muhammad Jahangir and Mukhtar Ahrnad etc. Tortured them whereby Muhammad Anwar succumbed to the injuries and the others also received injuries. F.I.R. For offence under section 302/344/34/109, P.P.C. Was registered at the complaint of Muhammad Jameel at the Police Station on 22-101993. Respondents were arrested. Respondent Shafqat Bari approached. The Court of Session for grant of bail, which was rejected. However, the Lahore High Court on 22-2-1994 released him on bail on the ground that section 302, P.P.C. Was altered to section 316, P.P.C. By the police. The other respondents on the same ground were also released on bail by the High Court on 9-4-1994.
The appellant challenged the release of the respondents before this Court in Criminal Petitions for Leave to Appeal Nos.87/L-94 and 158/L-94. The same were dismissed with the observations-as under:-- "After considering the submissions made at the bar we do not feel inclined to make any observation regarding the nature of offence alleged to have been committed by the respondents lest it may prejudice the case of either party. We, however, observe that the 1 dal Court will proceed with the case uninfluenced by any observation made in the impugned order which covers only the offence under section 316 of the P.P.C. And not under section 302 of the P.P.C. In case the learned Trial Court on a perusal of the material placed before it finds that the respondents are prima facie linked with a more heinous crime of a lesser one it will frame -a charge accordingly and proceed in accordance with law. With theseolaservations, these petitions are dismissed."
3. Charge under section 302, P.P.C. Was framed against the above said respondents by the learned Trial Court Judge. In view of the fact the appellant moved another application before the High Court for cancellation of bail of the respondents. On 20-11-1994 the High Court dismissed the application. The appellant came before this Court and sought for leave to appeal and leave was granted.
4. The learned counsel for the appellant reiterated the same grounds which he had agitated at the time of arguing the petition for leave to appeal. The thrust of his argument was that the respondents were allowed bail on the ground that the respondents were charged under section 316, P.P.C. Which was lesser than the offence under section 302 P.P.C. He reiterated that the charge under section 302, P.P.C. Was framed against the respondents. Therefore, their case falls under the prohibitory clause of section 497, Cr.P.C., and thus they be taken into custody.
5. The learned counsel for respondent Shafqat Bari contended that by subsequent challah the police held his client innocent and placed him in Column No,2 of the challah. In such view of the fact he was entitled to remain on bail. The learned counsel for the State contended that the High Court erred in rejecting the application of the appellant. It is a case where the discretion exercised by the High Court can be interfered with.
6. We have gone through the record of the case and the impugned order. It may be pertinent to observe that the High Court while granting bail and this Court while dismissing of Criminal Petitions Nos.87/L-94 and 158/L-94 had considered the facts of the case. The High Court was of the view that the offence for which the respondents were charged falls under section 316, P.P.C. But this Court in its order dated 4-8-1994 observed that "the learned Trial Court on the perusal of the material placed before it finds that the respondents are prima facie linked with a more heinous crime of a lesser one it will frame a charge accordingly and proceed in accordance with law." However, the Court was not inclined to make any observation in respect of the offence which might have been committed by the respondents. The learned counsel for the appellant insists that we should take a view that the respondents are indeed liable for offence under section 302, P.P.C., hence their bails may be cancelled. We, indeed, are not inclined to make any observation regarding the nature of the offence alleged to have been committed by the respondents. It may prejudice the case of the either party. The High Court had allowed bail to the respondents on the ground that it was case of further inquiry. The same facts still exist. It has yet to be seen whether offence falls under section 316 or 319 or 302; P.P.C. For the sake of convenience the above said three sections are reproduced hereunder:- "316. Whoever commits qatl Shibh-i-Amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as Tazir.
319. Whoever commits Qatl-i-Khata shall be liable to Diyat: Provided that, where Qatl-i-Khata is committed by any rash or negligent act, other than rash or negligent driving, the offender may, in addition to Diyat, also be punished with imprisonment of either description for a term which may extend to five years as Tazir.
302. Whoever, commits Qatl-i-Amd shall, subject to the provisions of this Chapter be--
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the 11.Tjunctions of Islam the punishment of Qisas is riot applicable."
7. However, it would be for the Trial Court to find out that what offence, if any, was committed by the respondents after taking into consideration the medical evidence and.-the ocular version produced by the prosecution. The authorities (i) PLD 1990 SC 758 (Iqbal Hussain v. Abdul Sattar and another). (ii) 1985 SCM R 382 (Ibrahim v. Hayat Gul and others) and (iii) The Punjab Law Reports, Vol.49 1947 page 137 (Gurdev Singh and others v. The Crown) relied upon by the learned counsel for the appellant do not streng.Throt his case.
We are, therefore, not inclined to interfere with the order passed by the LahoreiC High Court. The appeal is dismissed accordingly.