1. MUHAMMAD GUL, J.-The first and the second respondents herein along--with five others are accused of offences under sections 302/148 read with section 149 of the Pakistan Penal Code, for rioting and causing the murder of Kamir on the morning of 3rd November 1972. According to the allegations in the first information report, Akbar, respondent No. 1 was armed with a dung while Khushi Muhammad, respondent No. 2 was armed with a gun. In Criminal Miscellaneous No. 2623/B of 1973, moved on behalf of the seven accused, a learned Single Judge of the Lahore High Court by order dated 17-7-1973, allowed bail to the two respondents herein on the ground that Kamir deceased had no fire-arm or blunt weapon injury on his body and, therefore, the case of the two respondents was distinguishable from that of the other five accused who carried takwas and barchhis, and all injuries on the body of the deceased were allegedly by sharp edged weapons.
2. To support his contention the petitioner has placed on the record a copy of the postmortem report which showed that the deceased suffered as many as nine blunt weapon injuries. Having regard to the part attributed in the first information report to Khushi Muhammad, respondent and the postmortem report, we allowed leave and converted the petition into appeal and issued notice to the State and the two respondents.
3. Learned counsel for the petitioner argued that the two respondents' being armed with deadly weapons were members of unlawful assembly and had fully shared its common object. Such being the case, there appear reasonable grounds for believing that the two respondents alongwith five; accused were concerned in the commission of an offence punishable with death. This disentitled them to the grant of bail, there being no exceptional circumstances to bring their case within the proviso to subsection (1) of section 497, Cr. P. C. It was also stressed that the respondents remained fugitive from justice before they could be arrested by the police.
4. Learned counsel for the respondents on the other hand submitted that there has been considerable delay in the commitment proceedings which per se entitled the respondents to the grant of bail. He also submitted that there existed no ground for interference by this Court in a matter which was entirely discretionary with the High Court, and relied upon Nadra v. Jamait Khan
(1) in support of this part of his argument. The precedent case is distinguishable on facts, for in that case, among other things the cartridge recovered from the spot was found to match the gun of accused, other than the respondents in this Court in that case. This was a factor which militated against formation of belief for the relevant purpose.
5. Learned counsel for the State supported the petition so far as it concerned Akbar respondent No. 1, but did not support the petition so far as it concerns Khushi Muhammad respondent No. 2.
6. Having considered the circumstances of the case we are of the view that the impugned order proceeds on misreading of the record and further that the case of Khushi Muhammad cannot be distinguished from that of Akbar because of the specific allegations against the former, in that, he was armed with a gun which he is alleged to have fired, and therefore, shared the common object of the unlawful assembly. Merely because the gun shot went astray and did not hit the mark would not bring his case within the exception and ex facie, lie cannot escape the vicarious liability under section 302, read with section 149, P. P. C. Even if be may not have actually caused the fatal injury.
7. The law on the point is well established and does not admit of any doubt. The delay in the conclusion of the inquiry proceedings is not inordinate either for which the respondents are also partially responsible.
8. For the foregoing reasons, we accept this appeal, set aside the order of the learned single Judge and direct that the two respondents shall surrender themselves before the Inquiry Magistrate forthwith. Their bail bonds ate hereby cancelled.
9. The learned inquiry Magistrate will proceed with the case without avoidable delay.