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Criminal Miscellaneous No. 2382 of 1965, decided on 2nd September 1965.

S. 497‑Bail in non- bail-able offence‑Discretion to be exercised with care and circumspection Offence under S. 302/149, P. P. C. Each accused vicariously liable for capital crime even if fatal injury attributed to one only of several accused‑Bail granted to accused without bearing in mind limitation imposed by S. 497 (1) Cancelled‑Penal Code (XLV of 1860), Ss. 302/149.

Gulzaruddin Ahmad v. State P L D 1965 Dacca 425 and Emperor v. Abhairaj Kunwar A I R 1940 Oudh 8 considered.

A. R. Niazi for Petitioner.

Jari Ullah Khan for Respondents.

Sh. Shabbir Ahmad for the State.

Date of hearing: 2nd September 1965.

By his order dated the 4th of August 1965 the learned Sessions Judge, Sargodha, granted bail to the four respondents who (along with one Aurangzeb) are accused of offences under sections 148 and 302/149, P. P. C. The allegations are, that on the 28th of June 1965 being armed with deadly weapons they committed rioting and caused injuries to Ghulam Muhammad, a matric student, result ing in his death on the following day in the Civil Hospital at Khushab. This petition by the deceased's father seeks the can cellation of the bail-granted to the four respondents on the grounds that:‑

(i) the respondents are abusing their liberty and trying to suborn the eye‑witnesses in the case; and

(ii) the learned Sessions Judge did not exercise his discretion with proper care, for there were reasonable grounds for believ ing that the respondents along with Aurangzeb are guilty of capital offence and there were no exceptional circumstances in favour of the respondents to entitle them to bail.

2. There are four eye‑witnesses of the occurrence, each of whom has sworn an affidavit, that the respondents are threatening to kill him, unless he were to desist from supporting the prosecution case in Court. I must say I am not impressed by the bold accusation against the respondents, repeated in the same language in each affidavit. Further, two of the eye‑witnesses, namely, Muhammad Aslam and Muhammad Latif, are closely related to the deceased and it is impossible to believe that the respondents should endeavour to suborn them.

3. The petition must, however, succeed on the second ground. The reasons which weighed with the learned Sessions Judge to release the four respondents on bail are not quite clear. May be, he was influenced by the fact that the injury caused by knife which proved fatal is attributed to Aurangzeb. But he overlooked the fact that among the respondents Shahar Yar was armed with a hatchet and the other three with hockey sticks and each of them is alleged to have attacked the deceased. Further, the offence alleged include offence under section 302/149, P. P. C., making each accused vicariously liable for the capital crime even if the fatal injury is attributed to one of the accused.

4. It is not possible to say at this stage, that there are no reasonable grounds for believing that the four respondents are not guilty of a capital crime. They are named in the F. I. R. which was recorded at the instance of the deceased and is there fore, substantive evidence in the case. There are also four eye witnesses of the occurrence, whose evidence is yet to be recorded. Therefore ex facie there are no exceptional circumstances operat ing in favour of the respondents to entitle them to bail at such an early stage.

5. Learned counsel for the respondents relied on Gulzaruddin Ahmad v. State (P L D 1965 Dacca 425) and Emperor v. Abhairaj Kunwar (A I R 1940 Oudh 8) and urged that the exercise of discretion by the learned Sessions Judge in granting bail to the respondents should not be lightly interfered. This principle has always been understood subject to the qualification that the discretion is exercised by the Sessions Judge with care and circumspection and not at random. In the instant case, there is nothing to show that the learned Sessions Judge exercised discretion on sound principles or with due care. A He did not bear in mind the limitation imposed by subsection (1) of section 497 of the Code of Criminal Procedure; 1898 for grant of bail in a capital case. Therefore, in my opinion, it is an eminently a fit case in which the High Court should interfere to secure the ends of justice.

6. For the foregoing reasons, I hereby order that the bails granted to the four respondents shall be cancelled and they shall surrender themselves to be remitted to custody. I must, however, enter a cavoat. Nothing herein contained shall be understood as affecting in any manner the merits of the case which shall be decided by the Courts below entirely on the evidence, which is yet to be produced. Nor shall it in any wise fetter the discretion of the Courts below to enlarge the four respondents on bail again, if at any stage of the proceedings there are reasonable grounds for believing that the respondents are or any of them is, not guilty of capital offence.

K. B. A.

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