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Petition for Special Leave to Appeal No. 400 of 1975, decided on 14th January, 1976.
(On appeal from the judgment and order of the Lahore High Court Lahore, dated 17th November, 1975 in Cr. Misc. No. 4654/B of 1975).
Constitution of Pakistan (1973)‑
----Art. 185(3) read with Criminal Procedure Code (V of 1898), Ss. 497 & 498‑Offences under Ss. 302 & 307, P. P. C. read with Ss. 148 & 149, P. P. C.‑Bail‑Order of Sessions Judge allowing bail to petitioners appellants proceeding on cogent grounds but reversed by High Court without adverting to such grounds some of which .not controverted by State Counsel‑Order of Sessions Judge restored in circumstances of case.
Aftab Farrukh, Advocate Supreme Court instructed by Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.
Iftikharul Haq Khan, Advocate Supreme Court instructed by Ijaz Ali, Advocate‑on‑Record for the State.
Date of hearing : 14th January, 1976.
‑In the course of hearing of arguments, we decided to convert this petition into a criminal appeal and to determine. it as such.
The appellant herein is one of the five accused in a case registered on 2‑6‑1975, at the instance of Noor Muhammad, as per F. I. R. No. 147/75, under sections 502, 307 and 148 read with 149, P. P. C. at P. S. Chuharkana, District Sheikhupura. According to the prosecution version, the appellant being member of unlawful assembly caused hatchet injury to Muhammad Ashiq who died on the same day.
The learned Sessions Judge by well‑reasoned order dated 9‑9‑1975 allowed bail to the appellant on the following grounds namely :‑
(i) that according to the prosecution, the deceased was hit by a gunfire by Boota a co‑accused but the autopsy of the deceased did not disclose any fire‑arm injury on the dead body ;
(ii) that the eye‑witnesses attributed three hatchet injuries one each to the appellant, Gbulam Haider and Wali Muhammad co‑accused, but according to the medical evidence the deceased had only two such injuries ;
(iii) that the appellant. had no motive to kill the deceased because "admittedly," the land dispute was between Ghulam Haider one of the co‑accused on the one hand and the deceased Muhammad Ashiq on the other ;
(iv) that as a result of the police investigation, the appellant was reported to have been found innocent ; and
(v) that the appellant is about 72 years old.
The order granting bail to the appellant was set aside by High Court by means of the impugned order on the ground that the appellant as member of the unlawful assembly, was vicariously liable for the offence com mitted in the course of rioting whether or not he was directly responsible for the same.
We have heard the learned counsel of the parties and consider that the order of the learned Sessions Judge allowing bail to the appellant proceeded on, cogent grounds but was reversed by the High Court without adverting to any of the above grounds, some of which were not controverted by learn counsel for the State
.
In the above circumstances, we accept the appeal, restore the order o tile learned Sessions Judge. However, nothing stated herein would affect the merits of the case.
S.Q. Bail granted.
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