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Criminal Petition for Special Leave to Appeal No. 128 of 1976, decided on 26th November, 1977.
(On appeal from the judgment and order dated 21st January, 1976 of the Lahore High Court at Lahore in Cr. Misc. No. 5487/E of 1975).
--- S. 497/498 read with Penal Code (XLV of 1860), S. 302/ 149-[Murder-case]-Bail-Japha only attributed to petitioner while fatal blow attributed to another co-accused--Two other co-accused allowed bail and petitioner's case indistinguishable From their cases-Petitioner lodged Jail for more than three years and no likelihood of trial commencing in near future-Plea of petitioner that he deserved to be released on bail during pendency of trial, held,-Full of force-Petitioner accordingly released on bail Constitution of Pakistan x,1973), Art, 185 (3).
Nazir Ahmad Cheema, Advocate Supreme Court instructed by Khawaja Wali Muhammad, Advocate-on-Record for Petitioner.
Iftikharul Haq Khan, Advocate Supreme Court instructed by Ejaz Ali, Advocate-on-Record for the State.
Date of hearing : 26th November, 1979.
The petitioner seeks leave to appeal against the order of the Lahore High Court dated 21st January, 1976 whereby his application for bail was dismissed.
The facts of this case as disclosed in the F. I. R. are that about three days before the occurrence Muhammad Yousaf came to see Rab Nawaz, the brother of the complainant (Shah Nawaz) asking him for some loudspeakers, as he used to keep them, upon Rab Nawaz refusing to oblige an altercation ensued. The deceased Haq Nawaz the brother of the complainant happened to be present there joined in the alter cation and grabbed Yousaf's neck exclaiming that they cannot give loud speakers to rascals. This annoyed Yousaf who threatened to avenge his insult.
On this fateful day Haq Nawaz deceased along with the complainant was returning at about 6.00 p. m. to his house from a fair. When they reached near the well of Ch. Mohammad Din, the petitioner (Mohammad Anwar) who along with his co-accused was sitting in ambush, attacked the deceased and the complainant. Mushtaq clasped the complainant from behind to prevent him from intervening, while Ehsan Ullah took out a pistol from his dub and shouted that he will shoot any one who dares to intervene. The petitioner allegedly caught hold of the deceased while his co-accused Yousaf and Pervaiz gave knife and sota blows respectively. However, on being entreated by Nasrullah and Noor Muhammad, the accused persons left the place of occurrence. A case was registered on 29th May, 1974 under sections 148 and 307/149, P. P. C. but later amended to section 302, P. P. C. when Haq Nawaz died as result of injuries sustained in the above incident.
The learned Judge in the High Court refused bail on the ground that the petitioner had facilitated the commission of murder, and as at the time of the commission of the offence he was a member of the unlawful assembly, therefore, he is equally responsible under section 149, P. P. C. for the death of Haq Nawaz deceased.
The learned counsel for the petitioner submits that the petitioner is entitled to be released on bail, inter alia, on the grounds that only Japha has been attributed to him while the fatal blow was allegedly given by Yousaf, that the case of the petitioner was. indistinguishable from that of Mushtaq and Ehsan who had been enlarged on bail. Furthermore even Pervaiz had been granted bail and that he has been in jail for more than three years and that there, is still go likelihood of the trial commencing in near future.
Having heard the counsel for the petitioner and Mr. Iftikharul Haq' Khan for the State we are- of the opinion that there is force in the plea that the petitioner deserves to be released on bail during the pendency of the trial. As the counsel for the State has been heard at length we would accordingly convert the petition into an appeal and order the petitioner to be released on bail in the sum of Rs. 10,000 and on furnishing a surety in the Plaintiff of Rs. 10,000 to the satisfaction of A. C., Daska.
Bail granted.
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