MUHAMMAD SHARIF vs MUHAMMAD ASHRAF AND ANOTHER

ORDER

1. MUHAMMAD YAQUB Ali, J.--The petitioner seeks leave to appeal from the order of a learned Single Judge of the High Court, Lahore, refusing to cancel the bail granted by him earlier to Muhammad Ashraf, respondent, charged along with others under sections 302, 307 read with sections 148 and 149, P. P. C.

2. The respondent first applied for bail in the High Court being Cr. Misc. No, 2435 of 1970 which was dismissed by another learned Judge on 3-6-1970. On 14-11-1970 the respondents filed a fresh petition for bail being Cr. Misc. No, 8143 of 1970 which was accepted on 3rd December 1970, and bail was granted to respondent No, 1 as he had allegedly raised only a lalkara and had taken no part in the assault on the deceased and his companions.

3. Muhammad Sharif, the private complainant instead of approaching the Court against the order granting bail moved the High Court on 14-12-1970 for cancellation of bail inter alia on the ground that the respondent No, 1 was armed with a balam and had caused injuries with it to the petitioner as well as his uncle Dossa, P. W. After causing these injuries he gave a lalkara at which Nazra, co- accused, fired at Bakhsha, deceased, and hit him on the right arm. This was followed by another shot fired by Ghazanfar, accused, which hit him in the chest and killed him on the spot. The plea for cancellation of bail did not find favour with the learned Judge and he dismissed the application with the following observations: "In this part of the country it is normal habit of the persons on the complainant side in the districts of Punjab to implicate almost all the able-bodied family members of a person who is accused of murder in the crime so that no one is left in the family to look after the case of the accused. There is no yardstick with the Court to measure such a desire of the complainant when a case is placed before a Court for consideration of bail matter. However, looking to the circumstances of the instant case, in my humble view the respondent is entitled to the privilege of bail and I have granted the temporary liberty. Surely he can forfeit the privilege if he violates the conditions of bail which is not alleged in this petition."

4. In support of the prayer for leave to appeal, it is urged that the learned Judge had a isconstrued the accusation made against respondent No, 1 in the First Information Report and that the observations made by him were likely to prejudice the prosecution case.

5. There is force in the contention raised by the learned counsel for if the accusation made against the respondent No, 1 be correct, then he and his co-accused had acted in the prosecution of the common object of the unlawful assembly and then each one of them was vicariously responsible for the offence committed by his co-accused.

6. The observations by the learned Judge that "it is normal habit of the persons on the complainant side in the districts of Punjab to implicate almost all the able-bodied family members of a person who is accused of murder in the crime so that no one is left in the family to look after the case of the accused" is too wide a statement. It is for the Courts to decide on the facts and circumstances of each case whether there has been addition of names by the complainant. The generality of the statement made by the learned Judge is, therefore, open to question. It is calculated not only to prejudice the prosecution in the present case but may well be treated by the subordinate Courts as a `yardstick' in all cases in which a large body of culprits related inter se are charged with the commission of an offence. Such a course may lead to manifest miscarriage of justice in given cases. We, accordingly, disapprove the observations made by the learned Judge to which the petitioner has taken exception.

7. In the view expressed above, we would have granted leave to appeal in this case, but we refrain from doing so, because the petitioner did not choose to approach this Court from the order granting bail to respondent No, 1 dated the 3rd December 1970. The application for cancellation of bail was dismissed on 22nd December 1970, and he waited for another 40 days to file the present petition for leave to appeal. The petition is, accordingly, dismissed with the caution that the observations made by the learned Judge in the High Court in his order dated the 22nd December 1970, will not influence in any manner the question of guilt or innocence of the accused persons and that if the respondent No, 1 is committed to the Court of Sessions Judge for trial on charges punishable with death or transportation for life, his bail may be cancelled.