' This order disposes of application for release on bail of Muhammad Ayub and Khairat Ali accused in case for the offence under sections 307/325/34, P. P. C. Another accused in the case of Jamadar Bagh Ali who was attributed `lalkard has already been admitted to bail by learned Sessions Judge, Gujranwala. Application by the petitioners was rejected by learned Sessions Judge with the following observations :- "As mentioned in my order dated 12-2-1978, there are two injuries on the head. Therefore, for the present application of section 307, P. P. C. Cannot be ruled out. It will be for the trial Court to determine whether the head injuries or the said fracture bring the case within the ambit of section 307, P. P. C. Or not. However, at this stage of bail the case has to be taken into consideration in the light of F. I. R. And the statements of P. Ws. Recorded under section 161, Cr. P. C. Therefore, there are no grounds for bail. The application is dismissed. However, after recording statements of Nawab Din and Muhammad Bashir P. Ws. The petitioners can again apply for bail."
2. Concisely, the facts bearing on the charge against the petitioners are that they had a dispute with Karam Hussain informant over turn of water for irrigation of land. On 27-1-1978 the petitioners had allegedly alongwith Jamadar Bagh Ali who, as said above, had merely shouted Valkara' waylaid Qadir Bakhsh father of the informant and dealt him a number of injuries with 'clangs' in their hands. Injury No. 9 "Abrasion 2" x 2' on the front of left leg in upper part with lacerated wound 1/4" x 1/4 going deep on the top of it and underneath fracture of Tibia and Fibila" was declared grievous. It is not denied that Nawab Din and Muhammad Bashir named in the report as witnesses of occurrence support the prosecution. The informant has explained in the report that the offence could not be reported to the police promptly as the injured witnesses had to be rushed to the hospital for treatment. The question if the explanation for delay in the report is plausible or not cannot be taken up at this stage. It will be shown that charge against the petitioners is not groundless in that that they may be pronounced guilty if evidence in the hands of prosecution is allowed to stand unrebutted and unchallenged.
3. Learned counsel for the petitioners maintained that ingredients of the offence under section 307, P. P. C. Were not satisfied. The injuries on the person of Qadir Bakhsh were not fatal in the ordinary course of nature. The petitioners could not, therefore, be saddled with the intention or knowledge as envisaged in section 307, P. P. C. There is a substantial distinction between murderous assault, which means a deliberate attempt at the life of the other which could not materialise due to supervening circumstance beyond the control of the assailant, and the offence of causing grievous injury, etc. In any case, there is a doubt if the petitioners were guilty for the offence under section 307 or 325, P. P. C. The latter offence is punishable with seven years' imprisonment and does not therefore fall within the prohibition enacted in subsection (I) of section 497, Cr. P. C. Benefit of such doubts should also be conceded in favour of the accused for disposal of bail application.
Ordinarily, bail is not declined in cases punishable with imprisonment less than 10 years.
4. As against it, learned counsel for the complainant contended with equal vehemence that the offence was premeditated. A specific motive had been attributed to the petitioners. Qadir Bakhsh had received three injuries in the head (scalp deep) which were no doubt simple in nature, but nature of injury is not the determining factor for applicability or otherwise of section 307, P. P. C. The condition of Qadir Bakhsh had taken a serious turn. He was re-admitted to Mayo Hospital and has now been shifted to Combined Military Hospital Lahore for treatment. It may be stated here that the documents submitted by Mr. Niazi show that Qadir Bakhsh was readmitted to the hospital as the bones had not united so far. Learned counsel for the complainant further contended that "hurt" as used in section 307, P. P. C. Includes grievous hurt as well as simple hurt. The accused may be held liable for punishment under section 307, P. P. C. Even if no hurt were caused at all.
5. I have to refrain from expressing a considered opinion on the precise nature of charge against the accused lest my observations should prejudice future course of proceedings. Suffice to say that the arguments that Qadir Bakhsh was completely at the mercy of the petitioners ; that he had received only one grievous injury on non-vital part of the body and the rest were skin-scalp deep and simple in nature ; that there was nothing to prevent the petitioners if they had intended to kill Qadir Bakhsh and that the petitioners could be punished for what they had actually done and not for what they may have done.Prosecution is obliged to show with suffi- cient clarity that there appear reasonable grounds for believing that the accused was guilty of offence punishable with life imprisonment. The sum total of the appearance of such reasonable grounds should be such as to give rise to a belief which is obviously something more than mere suspicion or possibility however strong. The question of applicability of section 307, P. P. C. Is not free from doubt at this stage. There is really no escape from the argument that the accused is entitled to the benefit of such doubts to A the purpose of grant of bail. The offence under section 325, P. P. C. Does not fall within the purview of subsection (1) of section 497, Cr. P. C. It is a settled rule of law that in such cases bail should be allowed liberally unless conduct of the accused disentitles him to the concession of release on bail. The petitioners are in the lock-up for the last 10 weeks. No useful purpose will be served by their continued detention in jail. Application accepted. Petitioners are allowed bail in the sum of Rs. 5,000 (five thousand) with two sureties each with personal bonds each in the like amount to the satisfaction of trial Magistrate. The petitioners are British Nationals and had come to Pakistan on British Passports. They shall first surrender passports to the learned trial Magistrate which shall not be returned to them until trial has concluded.