This second bail has been repeated after the first one was withdrawn on 30th June 1969. This application was listed for hearing before my learned brother, J. M. Hayat, J. And he, by an order dated 15th August 1969, directed the matter to be placed before me since I had heard the first application. Again on 18th August 1969 another Criminal `Miscellaneous Application (No. 303/69) was filed by the applicant under section 561-A, Cr. P. C. Wherein it was prayed by the applicant that a special Bench of two Judges be constituted to hear the bail application. The reason assigned for this request is evident from paras. 11 and 12, which are reproduced as under "11. That I am advised that the order passed by his Lordship Mr. Justice Muhammad Haleem on 13- 6-69 that the counsel withdraws the application and it is therefore dismissed involves a substantial question of law and is of general public importance and it directly and substantially affects the rights of the applicant.
12. That I am advised that the question is not free from difficulty and requires to be settled by a larger Bench of this Hon'ble Court inasmuch as the question `whether the with--drawal of application can amount to the dismissal of the application or withdrawal will amount to disposal of the application accordingly'."
On 18th August 1969 when the matter came up before me as per direction of my brother, J. M.
Hayat, J. For hearing it was adjourned at the request of the learned counsel for the applicant on the ground that he had filed an application for the constitution of a larger Bench and pending its disposal this matter may not be heard. I accordingly adjourned the hearing of the bail application.
2. While dismissing Cr. Misc. Application No. 303/69 on 18th August 1969, the learned Senior Judge observed that the request for the larger Bench should be made to the Judge who will hear this bail application and further gave a direction that this application be heard by me. Accordingly when this bail application was put up for hearing on 21st August 1969, another application was filed by the learned counsel for the applicant that the matter be referred to a larger Bench as this bail application involved a substantial question of law. At the outset I told the learned counsel for the applicant that since I had not dismissed the earlier bail application on merits, he is at liberty to press this application on merits and he thereupon told me that he will not press his prayer which is for referring this application for hearing to a larger Bench. I accordingly rejected that application by a separate order.
3. The learned counsel for the applicant urged before me that since after the disposal of the earlier application Dr. Muhammad Umar Khan was recalled and examined on 19th June 1969, and further material has come on the record. Dr. Fazil Muhammad Khan, who had examined the applicant, was also subsequently examined on 3rd July 1969 and that, according to the learned counsel, his evidence has also brought out fresh material. In the light of the evidence of these two doctors and the ocular evidence, the learned counsel for the applicant, in the first instance, raised two contentions before me. The first related to the applicability of section 34 as, according to the learned counsel there was no pre-concert between the applicant and Younus, the other assailant, and that, therefore, the applicant is liable only for his individual act, i.e. The consequence of the infliction of a danda blow on the head of deceased Aziz alias Bambia. The second contention is based, according to the learned counsel/, on the inference to be drawn from the evidence of Dr. Fazil Muhammad Khan that on account of the injury received by the applicant on the right wrist he was not in a position to inflict a lathi blow and that someone else from the crowd bad given that blow and that it was wrongly ascribed to the applicant. Another inference sought to be drawn from this evidence is that the applicant had fallen down and was not arrested at the spot by the constables P. Ws. Muhammad Nawaz and Saeedur Rehman as alleged.
4. The learned counsel for the applicant, however, did not restrict himself to these two contentions but also argued on a wider plane attacking the credibility of the eye-witnesses as well as the probability and improbability of their assertions. According to the learned counsel, one of the two constables, who is alleged to have apprehended the applicant, has stated in his cross- examination that he did not see any other person except the applicant and the other assailant, Younus. According to him, this statement cannot be taken to be correct as the date of incident was the eve of Eid-ul-Azha and for that reason persons were expected to be on the road for making purchases at 11-30 p.m. When the incident had occurred. He also urged with reference to the testimony of this witness that some persons from Cafe Gujrat had come and had seen the incident, yet no one was examined. The credibility of this witness is also attacked on the ground that according to him only two persons were seen by him chasing the deceased yet from the evidence of Siraj, who is also an eye-witness, it is clear that there were 20 or 22 persons running after the deceased and raising cries of "thief, thief". The learned counsel also referred to me the evidence of P. W. Muhammad Akram and wanted me to draw an inference from his evidence that the two police constables, namely Muhammad Nawaz and Saeedur Rehman, had reached after the deceased was inflicted the injuries and had fallen on the ground and that they are accordingly not eye-witnesses as claimed by them. The knife that was found at the spot is attempted to be explained on' the hypothesis that it was carried by the deceased and with it he had inflicted the incised injuries on the applicant. According to the learned counsel for the applicant the deceased used to sell knives and was a man of bad character. He is stated to be drunk at that time by P. W.
Muhammad Akram and that according to the affidavits he had come to the flat of the applicant for committing thefts and had injured the applicant with the chhuri. He was followed by the applicant, who was raising cries of "thief thief". He wanted me to infer that the applicant while chasing the deceased to apprehend him could not have shared the common intention with Younus who had inflicted the fatal knife blows on the deceased. The testimony of Saeedur Rehman, police constable, is attacked on the ground that, according to him, the shops were closed yet it being the eve of Eid-ul-Azha it is not possible to accept this statement and that the inference that he attempted to draw is that he was not there and did not accordingly witness the incident. Lastly, he stressed vehemently on the fact that the other assailant, Younus belonged to Lyallpur while the applicant is a refugee from Jullundur and that there is no evidence of pre-concert or any connection between them and it cannot, therefore, be said that the applicant shared the common intention with him to commit this murder.
5. In support of the first contention with regard to the application of section 34, the learned counsel cited before me decisions reported in (1) L R 52 I A 40 (pages 49 and 52), (2) AIR 1945 P C 118, (3) AIR 1946 P C 45 (p. 46 column 2) (4) AIR 1965 SC 257, (5) PLD 1956 SC (Ind.) 176 at p. 184 and PLD 1964 SC 177 (pp. 179 and 186) to show that the evidence lacked pre-concert, which is a necessary element of common intention under section 34, P. P. C.
6. The learned Additional Advocate-General, who has appeared to oppose the application, has contended that the committal inquiry is still in progress and due witness, who is a formal one, yet remains to be examined. The evidence so far recorded shows that there are four eye-witnesses, namely Muhammad Nawaz, Saeedur Rehman, Siraj and Muhammad Akram. Out of these four eye- witnesses Muhammad Nawaz and Saeedur Rehman who are police constables and were on patrol duty, had apprehended the applicant at the spot. His stick was also secured then and the F. I. R.
Was lodged by Muhammad Nawaz at Police Station Mithadar shortly after the incident which occurred at 11-30 p.m on 9th March 1968. There is consistent evidence to show that the applicant armed with a stick along with the other assailant Younus were seen chasing the deceased and it is the applicant who inflicted a dunda blow on the head of deceased Aziz while Younus inflicted knife blows. There is no material on the record either to indicate that the applicant was seen lying injured on the ground or that the blow inflicted on the deceased by a stick by one of the persons chasing him. There is also no material on the record to indicate that the deceased had gone to the flat of the applicant to commit theft and when offered resistance had inflicted knife injuries on the applicant. Only this much is in evidence that cries of "thief, thief" were being raised. There is also the opinion of Dr. Muhammad Umar Khan that at least three injuries were noticed on the deceased which were caused by a blunt weapon. According to him, the injury on the head was not sufficient to cause death of the deceased, but cumulatively death had occurred as a result of stab wounds and injuries on the body and skull of the deceased. He had further given hypothetical replies to questions as to how injuries 4 and 6 could be caused. According to the doctor, injury No. 4 could be caused by a fall with face downwards or rubbing against a hard substance. Injury No. 6 was inflicted from behind and could also be caused in the same fashion. Dr. Fazil Muhammad Khan noticed four incised injuries which were located on the wrist, arms and scalp of the applicant. To him was also put a hypothetical question as to whether the applicant could use his right hand and his reply was in the negative.
7. The learned Additional Advocate-General has contended that on the basis of the material on record, this is not a stage where conclusions on facts can be drawn either way and there is enough material to connect the applicant with the crime. This is all that is required to be ascertained at this stage. In conclusion, he stated that the application should be dismissed as the case fell within the prohibition contained in section 497(1), Cr. P. C. In assessing the case from the angle as to whether reasonable grounds exist, all that can be done at this stage is to ascertain as to whether grounds exist tending to connect the applicant with the crime. The moment there appear grounds bail should be refused. The appreciation of evidence is the function of the trial Court and it is not proper to assessor weigh the evidence one way or the other with a view to finding out as to the truthfulness or otherwise of the plea of the applicant.
8. What the learned counsel for the applicant wants m to do at this stage is to come to a prima facie finding that there was no pre-concert between the applicant and the other assailant and that, therefore, he could be liable only to the extent of his own act in the crime. This would involve a deeper appreciation of the evidence and a finding to that effect. The stage of defence has not come as yet and it is possible that the applicant may lead evidence in support of his plea. Similarly, the credibility of the witnesses as well as the possibility and the improbability of their assertions cannot also be weighed and assessed at this stage. Whatever, the objections are, they relate to the merits of the case and do not pertain to the ascertainment of reasonable grounds. Since an appre--ciation of those ground would involve a finding I would not propose to go into these questions as an expression on merits now would tend to prejudice the case at the trial either way.
9. The decisions cited at the Bar are at the ultimate determination of the superior Courts on the question of the applicability of section 34 on the basis of the material on record. These decisions are not helpful when a case is to be judged from a different angle. As observed earlier there does appear reasonable grounds-to connect the applicant with the crime. The question of his having committed a minor offence as a result of his own act does not arise when the material against him shows a prima facie application of section 34, P. P. C. And death has occurred as a result of the cumulative effect of all the injuries.
10. In conclusion I am of the view that there is no merit in this application which is accordingly dismissed.