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Criminal Petition for Special Leave to Appeal No. 69‑P of 1978, decided on 10th October .1978.
(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 16th September 1978 in Criminal Miscellaneous No. 690 of 1978).
---S. 497/498‑Bail‑Counsel unable to point out any circumstance forming basis of plea of vicarious liability‑Matter also essentially within discretion of Sessions Court seized of case‑Sessions Judge after examination of record finding matter such as needed further inquiry and granting bail to accused respondent‑Sessions Judge, held; quite justified in doing so and his order rightly maintained by High Court.‑[Vicarious liability].
----S. 497(5)‑Cancellation of bail‑Grounds of accused being a power ful person, accused and complainant having bad relations and both being bound down for breach of peace and accused having not surrendered himself promptly before police‑Held, no considerations to set aside orders of Court below enlarging accused on bail, such orders being supported by record and overall facts and circumstances of case.
Jalal-ud‑Din Khan, Advocate Supreme Court and Noor Ahmad Noori, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 10th October 1978.
‑On 25‑5‑1978, Raza Khan petitioner lodged an F. I. R. bearing No. 105/1978 at Police Station Daudzai, Tehsil and District Peshawar, about the murder of his son Asad Khan. The accused mentioned in the F. I. R. were (f) Faqir Muhammad (respondent No. 1) (ii) his sons Jehanzeb and (iii) Khan Sahib. Faqir Muhammad respondent was alleged to be armed with a pistol whereas Jehanzeb was alleged to be armed with a rifle and Khan Sahib with a shot‑gun. Asad Khan deceased however, had only one gunshot injury on his person. The occurrence is alleged to have been witnessed by Hamesh Gut son of Yousaf, Hamesh Gut son of Haider Khan, and Muhammad Ali son of Raza Khan complainant. In the F. I. R. no specific part or overt act has been attributed to Faqir Muhammad respondent except the bare allegation that he too was present on the spot. Faqir Muhammad applied for bail which was allowed to him by the learned Additional Sessions Judge, Peshawar, by means of his order dated 13‑8‑1978. The complainant (petitioner) filed an application bearing No. 690/78 for cancellation of bail but without any success as the same was dismissed by a learned Single Judge of the Peshawar High Court by his order dated 16‑9‑1978. The complainant (petitioner) has come up in a Petition for Special Leave to Appeal.
2. Learned counsel has argued that it is true that no overt act or specific part has been attributed to Faqir Muhammad respondent in the F. I. R. but according to him he was vicariously liable under section 34 of the P. P. C. However, he was unable to point out any circumstances on which the plea of vicariously liability was being raised. The matter was essentially within the discretion of the learned Additional Sessions Judge and if after examination of the record he opined that the matter was such which would need further inquiry and granted bail to the respondent he was quite justified in doing so and consequently his order was rightly maintained by the learned Single Judge of the Him Court. There is nothing wrong either with the order of the learned Single Judge or the order of the learned Sessions Judge. As a matter of fact the learned counsel was unable to point out any infirmity on legal or factual plane in their orders warranting interference by this Court. The only grounds urged were that the respondent is a powerful person; he and the complainant have bad relations and both were bound down for breach of peace; and that the respondent had not surrendered himself promptly before the police. These are no considerations to set aside orders of the Courts below which are well supported by the record and the overall facts and circumstances of the case. The result is that this petition has no merit and is dismissed.
Petition dismissed.
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