NAZAR MUHAMMAD vs THE STATE AND ANOTHER

ORDER

1. NASIM HASAM SHAH, J.-This petition for leave to appeal is directed against the order dated 21-5- 1978 of the Lahore High Court in Criminal Miscellaneous No. 715-B of 1978, whereby bail allowed to the petitioner by the Sessions Judge, Gujranwala, was cancelled.

2. According to the F. I. R. Lodged by Maqbool Hussain (respondent No. 2 herein) under sections 302,1307/149 and 148, P. P. C. At Police Station;-Sadar, Wazirabad, Nazar Mohammad (petitioner herein) armed with a gun, along with Manzur Hussain and Shaukat Manzur, armed with rifles, and Sardar, Allah Ditta and Allah Rakha, armed with hatchets, lay in ambush in the verandah of Manzur Hussain co-accused. When Maqbool Hussain com--plainant, Rafaqat Iftikhar deceased and Sadaqat Ijaz P. W. While coming from their house to, the cattle-shed passed in front of them, Manzur Hussain accused raised a -lalkara followed by a rifle fire by Shaukat Manzur accused.

3. Manzur Hussain accused also fired his rifle hitting the complainant. So far as the petitioner before us is concerned, it is alleged that he fired twice and injured Sadaqat Ijaz P. W. - The Police found Manzur Hussain innocent and, therefore, placed him in Column No. 2 of the challan. He was allowed bail by the Sessions Judge. The petitioner along with his co-accused Shaukat Manzur also applied for bail. The learned Sessions Judge granted bail to the petitioner, but refused this concession to his co-accused Shaukat Manzur. Respondent No. 2, thereupon; applied to the High Court for the cancellation of his bail, and a learned Judge of the said Court was pleased to cancel the same. In so doing, he observed that the petitioner took active part in the occurrence, in that, he while armed with a gun sat in ambush and also fired two shots at Sadaqat Ijaz P. W.

4. Hitting, the upper part of his left leg on the inner side: The provisions of section 34, P. P. C. Were, accordingly, attracted and the peti--tioner, prima facie, was guilty of an offence punishable with death or imprison--ment for life.

5. The contention of the learned counsel for the petitioner is that the shots allegedly fired by the petitioner did not hit the deceased; they merely injured a non-vital part of the body of Sadaqat Ijaz P. W. Therefore, the offence committed by him would more appropriately fall under section 324, P. P.

6. C. Or, at the most under section 307, P. P. C. And not under section 302, P. P. C. He argued, on the basis of this Court's decision in Muhammad Akbar v. State (1978 SCMR 7) the case of the petitioner does not fall within the ambit of sec--petition 497 (1), Cr. P. C. And it being one of further inquiry, the discretion exercised by the Sessions Judge in admitting the petitioner to bail was erroneously interfered with by the High Court.

7. So far as the above case is concerned, we may observe that every case of criminal nature proceeds on its own facts and circumstances and al rule of universal application cannot be deduced from the decision of any' A particular case. Be that as a may, the facts of the precedent case were that eight persons were accused of offences under sections 302, 334, 148 and 149, P. P. C., for having formed an unlawful assembly while armed with sticks and Vaholas, and in pursuance of the common object thereof, caused the death of one Ghulam Rasul. Two of the assailants were not alleged to have inflicted any injury to the deceased, but were alleged to have caused a simple injury to the complainant. Without examining fully the aspect if the appellants had formed themselves into an unlawful assembly, it was found that the case of the two accused who did not cause any injury to the deceased stood on a different footing and as such the said two accused could not prima facie, be held to have committed any offence punishable with death or life imprisonment and hence they were admitted to bail.

8. We would like to clarify that in the case cited above Muhammad Akbar and others v. State it was never intended to lay down as a rule of law that the Courts at bail stage should not even prima facie examine the question of constructive liability in the case where the accused is not attributed any injury to the deceased and is alleged to have caused, injuries to the P. Ws. As defined in section 141, P. P. C. An assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing it, inter alia is to commit any mischief or criminal trespass or other offence. There are other provisions such as sections 34, 109 and 120-B of the Penal Code which envisage the rule of constructive liability. The Courts, on the basis of the material placed before them, such as F. I. R., statements recorded under section 161, Cr. P. C., are fully justified, even at the bail stage, to go into the question whether a case of constructive liability is made `out. This, however, is subject to the rule of caution laid down in Manzoor v. State (PLD 1972 SC 8) namely :- " . . . It is obviously not correct to depend on the ipso dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-bailable cases is a matter within the discre--petition of the Courts which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such on offence.The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect theaccused person with the crime alleged against him. The Court'sbelief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."