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Criminal Miscellaneous No. 1051/B of 1985, decided on 3rd July; 1985.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 148/302/149‑‑Bail, cancellation of‑‑Accused admittedly empty handed‑‑No Lalkara or overt act in commission of crime attributed to him‑‑No exception, held, could be taken to grant of bail to him in circumstances of case‑‑B granted to accused was, therefore, maintained.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 148/302/149‑‑Bail, cancellation of‑‑Accused armed with carbine, resorting to actual firing‑ Additional Sessions Judge having made assessment of evidence while considering question of bail, travelled beyond scope of tentative assessment‑‑Bail cancelled.‑‑[Evidence].

1970 P Cr. L J 180 ref.

Muhammad Sharif for Petitioner.

Farooq Baidar, Asstt. A.‑G. for the State.

This is an application of bail granted to Manzoor Hussain and Khadim Hussain respondent No. 2 by the Additional Sessions Judge, Lahore on 6‑4‑1985 in case under section 302/148/149, P.P.C. registered at Police Station Baghbanpura, Lahore vide F.I.R. No. 365/84, dated 14‑11‑1984.

2. The prosecution case is that at the eventful time Muhammad Mushtaq alias Shaqoo complainant and Muhammad Abbas deceased were sitting in a garden when Noor Butt armed with rifle, Gama (Ghulam Muhammad) armed with revolver, Manzoor Hussain (Zahoori) armed with carbine, Mian Asif armed with gun and Nanna empty handed arrived there on a tractor. Noor Butt co‑accused started abusing the complainant and raised Lalkara whereon the complainant and the deceased started running towards opposite side but the accused persons opened fire hitting on the buttock and the shoulder of Muhammad Abbas deceased, he fell down on the ground and succumbed to the injuries on his way to the hospital.

3. The learned counsel for the petitioner submitted that since active part in the commission of the crime has been attributed to the respondents, therefore, there was no legal justification for allowing them bail in a case punishable with death or imprisonment for life. On the other hand the learned counsel for the respondents has supported the bail order of the Additional Sessions Judge.

4. I have considered the submissions made by the learned counsel for the parties with care. As for Khadim Hussain, I find that he was admittedly empty handed at the time of occurrence; that he did not raise any Lalkara and that no overt‑act in the murder of Muhammad Abbas is attributed to him and as such no exception can be taken to the grant of bail to him. So far as Manzoor Hussain (Zahoori) is concerned, I find that the allegations against him are that he was armed with carbine and had actually fired shots with the same at the B time of occurrence; that the learned Additional Sessions Judge while considering the question of grant of bail to him has travelled beyond the scope of tentative assessment inasmuch as he has stated:‑

"Manzoor Hussain's case is one of further enquiry as he is alleged to have carried a carbine which can fire a cartridge only. There is no pellet mark on the body of deceased as per P.M. Report, Although no specific part has been assigned to this accused, yet he had been given a general role of firing at the deceased which proved ineffective. A perusal of the post mortem report reveals two bullet injuries Nos. 1 and 3, injury No. 2 being exit wound, which prima facie belies this part of the allegation of the prosecution. In view of the law laid down in 1970 P Cr. L J 180 Manzoor accused is entitled to bail."

Since the Doctor has not been examined so far and the witnesses have not stated that Manzoor Ahmad respondent had fired an ineffective shot, therefore, I am of the opinion that there was no legal justification to allow bail to him.

5. For what has been stated above, the application for the cancellation of bail to the extent of Khadim Hussain is dismissed. The bail granted to Manzoor Ahmad respondent by the learned Additional Sessions Judge, vide his order, dated 6‑4‑1985 is cancelled. He shall surrender himself immediately before the learned Sessions Judge/Addl. Sessions Judge, Lahore.

S.A. Partly accepted.

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