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Criminal Miscellaneous Applications Nos. 214 (Suk) and 971 of 1985, decided on 20th August, 1985.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), Ss. 302/307/147, 148 a 114‑ Application for cancellation of bail‑‑Accused alongwith co‑accused allegedly coming duly armed and causing grievous injuries to prosecution witness and co‑accused giving injuries to deceased who died on spot‑ Accused named in first information report being vicariously liable for offence under S. 302/34, Penal Code, and having common intention, were not entitled to benefit of third proviso to subsection (1) of S.497, Cr.P.C.‑‑Bail cancelled.

Sharafuddin Ada for Applicant.

Muhammad Afzal Soomro for Respondents.

This is an application under section 497(5), Cr.P.C. for cancellation of bail granted to respondents Haji Khamiso and Hakim Ali.

The case of prosecution is that on 19‑2‑1984 at 1600 hours, complainant Ali Hassan alongwith his nephews Roshan, Yar Muhammad and Zulfiqar ALI were going towards their lands. When they, reached their uncultivated land they saw Sikandar. Mumtaz, Hakim Ali, lmdad Majeed and Khamiso with hatchets. Mumtaz challenged Roshan and instigated co‑accused on which Sikandar gave hatchet blow to Roshan on stomach, who fell down while respondent Hakim Ali caused hatchet blows to Yar Muhammad on his cheek and Khamiso gave hatchet blows on his right hand, it is further alleged that lmdad gave him hatchet blow on his left leg while Majeed caused injury to Yar Muhammad with backside of hatchet. Roshan died and Yar Muhammad sustained injuries. The case under sections 302/307/147/148 and 114, P.P.C. was registered on the same day at 5‑00 p.m. at Police Station Taluka, Larkana.

The respondents Haji Khamiso, Hakim Ali and co‑accused lmdad and Majeed moved bail application which was dismissed by the learned Sessions Judge, Larkana on 8‑5‑1984.

Being aggrieved with the order, Haji Khamiso and Majeed only filed an application in the High Court, Circuit Bench at Sukkur registered as Cr.B.A. No. 427 of 1984).

The bail application of respondent Khamiso was rejected by an order, dated 15‑8‑1984 and it was observed by my brother Mr. Justice Syed Ally Madad Shah that two injuries which have been attributed to the applicants Haji Khamiso and Hakim Ali were grievous in nature as such the bail application of Khamiso is dismissed while lmdad was admitted to bail.

Once again respondent Khamiso, Hakim Ali filed bail application before the learned Sessions Judge on 23‑2‑1985. Both the respondents were granted bail by an order, dated 7‑3‑1985.

Mr. Sharafuddin Ada, appearing for the applicant /complainant Ali Hassan, submitted that bail of Haji Khamiso was rejected by the High Court on merits. Therefore the learned Sessions Judge has no jurisdiction to entertain the fresh bail application and his order is not proper. He has also argued that both the respondents are vicariously liable for the offence under section 302/34, P.P.C. Therefore, they ore not entitled to get benefit of proviso 3 of section 497, Cr.P.C. as they remained in jail for one year at the time they were granted bail.

I have also heard Mr. Muhammad Afzal Soomro appearing for the respondent. He contended that the case of respondent is distinguishable and their case could be bifurcated and his contention is that bail has rightly been granted.

The bail application of Khamiso and Hakim was rejected by the one Sessions Judge on merits on 8‑5‑1984 and he observed in his order that Hakim Ali, Khamiso and Imdad are said to have caused injuries to Yar Muhammad. Therefore, they are not entitled to bail. The respondent Hakim Ali did not file any application for bail before the High Court. The bail application of Khamiso was rejected by this Court. The learned Sessions Judge while granting bail in his order, dated 7‑3‑1984 observed as under:

"I have carefully considered the submissions made by both the learned counsel. I have also carefully gone through the orders passed by the Hon'ble High Court and the learned Sessions Judge, Larkana, mentioned above. Obviously co‑accused lmdad and Majeed were also challaned for the same offence for which the present petitioners have been challened. But both of them were granted bail by the aforesaid Courts and while passing such orders both the Courts did not consider them vicariously responsible for the murder of deceased Roshan but only considered the role attributed to them in causing injuries to deceased Roshan P.W. Yar Muhammad. Thought, co‑accused Majeed had caused simple injury to deceased Roshan, taut pie was granted bail by the learned Sessions Judge, Larkana, on the ground that the nature of injury was simple. Similarly accused lmdad was granted bail by the Hon'ble High Court on the ground that he had caused only simple injury to P.W. Yar Muhammad. Thus, it is clear that bail was declined to the present two petitioners on the ground that they had caused grievous injuries to P. W. Yar Muhammad and not on the ground that they were vicariously liable for the murder of deceased Roshan. In fact none of them had caused any injury to deceased Roshan, hence their case stands on a better footing than the case of co‑accused Majeed."

Subsection (a) of section 497, Cr.P.C. runs as under:‑

"Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded."

In view of the above discussion, I am of the view that both the petitioners would prima facie be guilty for an offence punishable under section 326, P.P.C. for causing injuries to P.W. Yar Muhammad, as such the provisions of subsection (a) of section 497, Cr. P. C. are applicable to their case. Accordingly, since one year has passed and the case has not been fixed for final trial as yet, hence I grant this application and release them on bail on furnishing surety in the sum of Rs,25,000 each P.R. bond in the like amount.

He has come to the conclusion that the prima facie applicants/ respondents are not guilty for the offence punishable under section 326, P.P.C. Therefore they are entitled to get benefit of proviso 3 of section 497, Cr.P.C. I do not agree with the view taken by the learned Sessions Judge as allegation against the respondents is that they alongwith other co‑accused came duly armed and caused grievous injuries to the P.W. Yar Muhammad while Sikandar Ali gave injuries to Roshan who died on the spot. All the accused are named in the F.I.R. are vicariously liable for the offence under section 302/34, P.P. C. punishable with death and they can only get benefit of provisio 3 of section 497, Cr.P.C. when they continuously remained in jail for more than 2 years. The proviso 3 of section 497 reads as under:‑

"Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail:

(a) who, being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or

(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded:

Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."

It is clear that if any person who is accused of offence can get benefit in this case. Respondents are accused of common intention of murder of Roshan and causing injuries to Yar Muhammad, therefore, they are not entitled to get benefit and it is two early to say that they are accused of offence under section 326, P.P.C. when case had not proceeded.

In the present case, the respondents even in, their bail application filed on 23‑2‑1985 had not taken the ground of delay in trial. The learned Sessions Judge should have avoided to comment on the order of this Court and as well as orders of his predecessor. High Court has not made any observation in the order that respondent is responsible for the offence under section 326 P.P.C.

For the reasons stated above the respondents are not entitled to get benefit of delay in trial. I set aside the order, dated 7‑3‑1985 of the learned Sessions Judge, Larkana. Consequently the bail of the respondents is cancelled. They are present in Court. They are remanded back to custody and be produced before the Sessions Judge, Larkana.

M.Y.H. Bail cancelled.

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