SAIDUZZAMAN SIDDIQUI, J. ---Petitioners Muhammad Aslam son of Gulab Khan and Abdul Qayyum son of Madhu Khan have filed the above petition to call in question the order of a learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, dated 10-4-1996 whereby the learned Judge cancelled the bail granted to the petitioners by the trial Court in a case under section 302/34, P.P.C.
2. On 7-5-1996 when this petition came up for hearing before the Court, the petitioners were admitted to interim bail after hearing the counsel for petitioners and counsel for respondent No.2.
However, the petition could not be disposed of finally on that date as notice to the State was not given in the case. Accordingly, on that date, notice was ordered to Advocate-General, Punjab.
Today we have heard the learned counsel for the petitioners, the complainant's counsel and Mr. Karam Elahi Bhatti for Advocate-General, Punjab and after hearing the learned counsel for the parties we have converted this petition into appeal which is disposed of as under.
3. The petitioners alongwith one Sajawal Khan son of Sabir Hussain were named as accused in F.I.R.
No.152 registered at Police Station, Sarai Alamgir on 9-6-1995. According to the allegation in the F.I.R. The petitioners alongwith Sajawal Khan had allegedly trespassed on the land belonging to the complainant and started ploughing the same. Jehangir Iqbal son of Muhammad Ashraf, the complainant, having learnt the same alongwith his father Muhammad Ashraf and Muhammad Aslam son of Sultan reached the disputed land and tried to prevent the petitioners and Sajawal from ploughing the land. On the intervention of the complainant side, it is alleged, that abuses were exchanged between the complainant side and the accused whereupon accused Muhammad Aslam hit the father of the complainant with 'butt' of his gun. Similarly, co-accused Abdul Qayyum also gave a blow with wrong side of the hatchet. The 3rd accused Sajawal is also said to have given ' Lathi' blow on the left arm of deceased Muhammad Ashraf. The complainant side in their defence give ' Lathi' blows to the petitioners and Sajawal whereupon the petitioners and Sajawal decamped from the scene. Muhammad Ashraf father of the complainant was then removed to hospital and a case under section 324/34, P.P..C. Was initially registered against -the petitioners and said Sajawal but after the death of Muhammad Ashraf, the case was converted to section 302/34, P.P.C.
4. The medical report in the case shows that the deceased Muhammad Ashraf suffered only 2 injuries on the head. No injury was, however, found on the left arm of the deceased which was attributed to one of the accused Sajawal in the case. The trial Court admitted all three accused to bail. In ' respect of Sajawal, it was observed by the learned trial Court that the injury on the left arm of the deceased attributed to Sajawal was not found during the post-mortem of the deceased. In so far the to petitioners were concerned the learned trial Court came to the conclusion that out of to injuries on the head of the deceased only injury No.2 was declared as the cause of death of deceased Muhammad Ashraf but it was not attributed specifically to any one of the to accused so it was a case which called for further enquiry. It was also observed by the learned trial Court while admitting to accused to bail that it was a case of cross-version as admittedly, according to F.I.R.
Complainant party also caused stick blows to accused person who suffered injury which was proved by the medical evidence.
5. The complainant side being aggrieved by the grant of bail to the petitioners moved an application before the learned Judge in Chambers for cancellation of their bail which was accepted and the bail granted to accused persons has been cancelled.
6. The learned Judge in Chambers mainly relied on the fact that at this stage it was not possible to go into the question whether the to petitioners had intention of causing death of deceased Muhammad Ashraf or not as prima facie in the opinion of the learned Judge in Chambers, the locale of the injury and the force with which the injury was caused by the to accused was sufficient to spell out their common intention to cause the death. The learned Judge, however, failed to take notice of the fact that apart from the fact that only one injury on the headof the deceased can be held to be the cause of death of Muhammad Ashraf and the material so far collected by the police did not show as to which of the to petitioners caused this particular injury. The learned trial Court had also taken into consideration that it was a case of cross-version and the accused also suffer injuries at the hands of the complainant party and therefore, it was not a case where it could be safely stated that to petitioners shared common intention. The learned counsel for the petitioner has relied on the following observations in the case of Jaffar v. State (1980 SCM R 784):-- "In seeking leave to appeal the learned counsel for the petitioners contended that the first petitioner had also received injuries in the fight arid while refusing bail to the petitioners, the High Court did not give due consideration to the counter-version. It was next contended that from the available material it could not be said as to who caused the fatal injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry under section 497(2), Cr.P.C. The learned Additional Advocate-General appeared to oppose the bail but after examining the material we were of the view that it was case of further inquiry. Accordingly we converted the petition into an appeal and allowed bail to the petitioners."
7. After hearing the learned counsel for the parties, we are of the view that the discretion exercised by the learned trial Court in admitting the to petitioners to bail in the circumstances of the case was not such which required interference by the High Court. We, accordingly, set aside the order of the High Court and restore that of the trial Court. The interim bail granted to the petitioners by this Court is confirmed. The appeal stands disposed of accordingly.