BADAR US SALAM vs MUHAMMAD JAVED AND 2 OTHERS

This is an application by Badar-us-Salam son of Haji Ehsanul Haq for the cancellation of bail granted to Muhammad Javed, Ijaz and Muhammad Ashraf respondents. They are accused of offences under sections 148 and 307/149 P. P. C.

2. The allegations against them are that all three of them armed with knives alongwith two others, namely, Hadi and Abdullah, who were armed with sotis, attacked Tahirul Islam. Muhammad Javed respondent gave knife blow on the back of the chest of Tahirul Islam who fell down on receiving the same. As he fell down Muhammad Ashraf respondent gave him a knife blow hitting him on the left thigh. Ijaz respondent also gave a knife blow on the left buttock. Some others, who were present nearby saw the occurrence and rescued Tahirul Islam.

Muhammad Javed respondent No. I was granted bail by the Assistant Commissioner, Sargodha, on the ground that his age was less than 16 years.

Muhammad Ashraf and Ijaz respondents were granted bail by the learned Sessions Judge, Sargodha, by his order dated 7-10-1974 What appears to have weighed with the learned Sessions Judge is that in the circumstances of the case Muhammad Ashraf and Ijaz respondents cannot be said to have given knife blows to Tahirul Islam, with the intention of murder.

3: The learned counsel for the petitioner, however, submitted that the 5 accused including the three respondents had armed themselves with dangerous weapons and attacked Tahirul Islam with a common object. He argued that even if the unlawful object was merely to give a beating to Tahirul Islam, the fact that three of the accused (namely, the present respondents) were armed with knives, is enough to show that each one of them knew that serious injuries were likely to be caused to the victim during an attack and each one is, therefore, vicariously responsible by application of section 149, P. P. C. He argued further that the three respondent; had recklessly given knife blows to Tahirul Islam and the fact that the latter managed to survive is his sheer good luck. But all the same each one of the assailants had been released on bail, on one ground or the other. He submitted that in cases like the present one, what has to be seen is as to what the offence would have been if the victim had died. For this contention he relied upon the wording of section 307, P P.C., which reads as follows :- Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment or to such punishment as is hereinbefore mentioned.

He argued that Tahirul Islam could easily have died by the injuries inflicted on him by the respondents. In this connection he pointed out that the injuries were quite serious and have been described by the doctor s follows

(1) A stab would 1' x --' chest deep on the back of right side of chest, just near the middle line in about the middle of chest.

(2) An incised wound --' x -- on the back of left thigh in about the middle corresponding wound.

(3) An incised wound --' x --' x --' on the left buttock corresponding near Dhoti.

The doctor has described the general condition of Tahirul Islam at the time of his medical examination as follows :-- "The patient is in a state of severe shock, purl-less, moriting. There was blood in it. He has vomited in my presence. There is blood init. BP not--face is pale. Restless.

He has not improved normally even after one bottle of blood and one bottle of glucose given."

The learned counsel for the petitioner pointed out that a major artery (called the femoral artery) runs through the leg, underneath the location of injury Nos. 2 and 3. It is common (medical) knowledge that if that artery is punctured, the victim can bleed to death, if medical aid is not provided within a short time. The counsel argued that if Tahirul Islam had dies the offence committed by the respondents would certainly have been one of murder as defined by clause 'Secondly' of section 300. P. P. C. In support of his contention that to determine whether an offence fell under section 307 P. P. C. Or not one has to see what the offence would have been if the victim had died, he relied on Ashiq Hussain v. Crown (PLD 1950 Lah. 147).

4. Having heard the learned counsel for the parties I am of the view that there is considerable force in the contentions raised by the learned counsel for the petitioner, and I feel that there are reasonable grounds for believing that they were guilty of an offence punishable with imprisonment for life, and were not entitled to the grant of bail in view of the embargo placed on the same by section 497 (1), Cr. P. C. The bail of Muhammad Ashraf and Ijaz respondents is, therefore, cancelled.

5. I now take up the case of Muhammad Javed respondent. He was granted bail by the learned Assistant Commissioner, Sargodha, on the ground that he was below 16 year: of age. No doubt, on the date of occurrence he was 12 days short of being 16 years old and his case is covered by the proviso to section 497 (1), Cr. P. C. On a reading of the proviso would show that it merely gives a discretion to the Courts and it is not essential that a person accused of such offence should necessarily be released on bail. It is to be noticed that it was Muhammad Javed respondent who gave the most serious blow to Tahirul Islam on the back of his chest. From his act it is apparent that he is desperate kind of person and if this is his performance at the age of 16 years is merely an indication of shape of things to come.

6. I feel that under the circumstances of the case he too was not entitled to be released on bail. His bail is also cancelled.

7. The application stands disposed of.