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Criminal Appeal No. 55 of 1973, decided on 14th November 1973.

(On appeal from the judgment and order of the Lahore High Court, dated the 9th August 1973, in Criminal Miscellaneous No. 3071/B of 1973).

‑‑ S. 498 read with Penal Code (XLV of 1860), S. 302/34‑Bail, cancellation of‑ Respondent alleged to be present at place of occurrence armed with a pistol and to have raised lalkara whereupon co‑accused S fired from his guns fatally injuring deceased and co‑accused M and F also fired from their guns injuring two different persons including a minor child‑All accused subsequently running away making reckless firing with their weapons‑Such allegation, if unrebutted, held, disclosed prima facie case against respondent and such respondent bailed out on wrong exercise of discretion‑Bail cancelled.

Ch. Muhammad Iqbal, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Appellant.

Kh. Sultan Ahmad, Advocate Supreme Court instructed by Maqbool Ahmad Kadri, Advocate‑on‑Record for Respondent No. 1.

R. S. Sidhwa, Advocate Supreme Court for the State.

Date of hearing : 14th November 1973.

In this case notice was issued to the Advocate General. Muhammad Tufail respondent No..1 has also put in caveat and he is represented by Kh. Sultan Ahmad At the request of the parties, this petition for special leave to appeal is converted into an appeal.

A case has been registered against respondent No. 1 and others under section 302/34, P. P. C. He has been released on bail by the High Court on the following observation :‑

"In the circumstances in which the fire was opened, the question of omission of intention between the petitioner and the three co‑accused calls for further enquiry particularly because the persons hit by the shots were apparently not the intended victims. A general allegation towards the end of the F. I. R. that all the accused went away from the scene firing their weapons does not necessarily incriminate the petitioner until satisfactory evidence is advanced in that behalf."

The petitioner has contended that the above observation of the High Court is not in accordance with law. According to him, section 34, P. P. C. applies to the facts of the present case and there was no question of further enquiry on the question of intention of respondent No. 1. Kh. Sultan Ahmad, learned counsel for the respondent No. 1 has contended that only allegation against respondent No. 1 is that he also brought an unlicensed pistol from haveli and came out with the co‑accused by raising lalkara. No other overt act is attributed to him nor he is said to have fired at any one‑ of the injured P. Ws. or the deceased.

After hearing the learned counsel for the parties, we are satisfied that the learned Single Judge of the High Court has not taken into consideration the provisions of section 34, P. P. C. while granting the bail to respondent No. 1. The allegation against respondent No. 1 is that he was present at the place of occurrence and was armed with pistol. He raised lalkara and thereafter, co‑accused Said Muhammad fired from his gun which fatally injured the deceased Mst. Chiragh Bibi. Thereafter, Muhammad Sharif and Farmaish Ali also fired from their guns which injured two different persons, including a minor child. All the accused thereafter ran away making reckless firing with their weapons. In our opinion, if this allegation remained unrebutted, there was a prima facie case against respondent No. 1 under section 302/34, P. P. C. In these circumstances, the High Court was not justified in granting bail to respondent No. 1 and has exercised the discretion vested in it on wrong grounds. We would, therefore, set aside the order of the High Court. The appeal is allowed. Respondent No. 1 is directed to surrender to his bail bond.

Appeal allowed.

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