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Criminal Petition for Special Leave to Appeal No. 404 of 1978, heard on 26th October 1978.
(On appeal from the order dated 26th September 1978 of the Lahore High Court in Cr. Misc. No. 2706‑B of 1978).
Criminal Procedure Code (V of 1898)‑---
----Ss. 497 & 498 read with Penal Code (XLV of 1860), S. 149‑Bail Vicarious liability‑Courts on basis of materials placed before them, such as, statements recorded by police and F. I. R.‑Justified even at bail stage to go into question whether case of vicarious liability made out subject to rule of caution laid down in Manzoor v. State P L D 1972 S C 81.‑[vicarious liability------Bail].
Muhammad Akbar v. State 1978 S C M R 7; Nazar Muhammad v. State P L D 1978 S C 236 and Manzoor v. State P L D 1972 S C 81 ref.
Talib Hussain Rizvi, Advocate Supreme Court with All Imam Naqvi, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 26th October 1978.
.‑This petition for special leave to appeal is directed against the order dated 26‑9‑1978 passed by a Judge of the Lahore High Court, dismissing the application for bail (Cr. Misc. No. 2706‑B of 1978) of the petitioner in a case registered against him and others under section 302/307/148/109/149, P. P. C. at Police Station Gojrat District Faisalabad, for the murder of Manzoor Ahmad and attempted 'under of Atta Muhammad complainant
The case of the prosecution as disclosed in the F. 1:' R. is that Atta Muhammad complainant and Manzoor Ahmad deceased were busy irrigating their land when the petitioner Muhammad Rashid and his co‑accused Nazar Muhammad, both armed with sticks, Muhammad Aslam and Fazal Ilahi, armed with sticks fitted with pointed iron (Sua) and Ahmad Din, armed with a knife, came to the spot. Nek Muhammad, Muhammad Aslam and Fazal Ilahi caused injuries to Manzoor Ahmad with their respective weapons and he succumbed to the injuries. Ata Muhammad complainant wanted to run away from the spot, but he was given a chase by Muhammad' Rafiq petitioner and Ahmad Din co‑accused. Ahmad Din accused inflicted a knife blow to the complainant while the petitioner caused him injuries with his stick. The motive alleged was that some time before this occurrence the complainant party had caused injuries to Fazal Ilahi and Muhammad Aslam co‑accused over a dispute of land on accost of which a case was registered against them.
The petitioner applied for bail before the Sessions Judge, Faisalabad, who, by his order dated 19‑1‑1977 rejected the application. He, there after, moved the Lahore High Court, and a learned Single Judge by his order-dated 5‑9‑1977 dismissed the application (Cr. Misc. No. 3383‑B of 1977). The petitioner again applied for bail before the Addl. Sessions Judge, Faisalabad, but this time too he was refused the concession of bail. His second application for bail (Cr. Misc. No. 2706‑B of 1978) 'before the High Court was also dismissed on the grounds that the petitioner was a member of an unlawful assembly; he had accompanied his co‑accused_, to the spot while armed with I and had made a murderous assault on the complainant while his co‑accused committed the murder of Manzoor Ahmad in prosecution of the common object of the said unlawful assembly. Accordingly, prima facie, the provisions of y section 149 P. P. C. were attracted, and the case of the petitioner being covered by the prohibitory clause of section 497(1), he was not entitled to the grant of bail. Hence this petition.
The learned counsel for the petitioner attempted to argue that as the petitioner was accused of having caused only a simple injury to a witness and did not do any harm to the deceased, therefore, he was entitled to bail, and the question of vicarious liability under section 149, P. P. C. should not be examined at the stage of bail. In this connection reliance was placed on Muhammad Akbar v. State (1978 SCMR 7).
The decision in the above-referred case has been clarified by this Court in Nazar Muhammad v. State (PLD 1978 SC 236) wherein it was held that the Courts, on the basis of material placed before them, such as the F. 1. R. and the statements recorded by the police were justified even at bail stage to go into the question whether the case of constructive liability was made out, subject, of course, to the rule of caution laid down in Manzoor v. State (PLD 1972 SC 81).
As the learned Judge in the High Court has not exercised the discretion vested in him arbitrarily or illegally, we find no ground for interference with his order. The petition is, accordingly, dismissed.
Petition dismissed.
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