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Criminal Miscellaneous No. 2830‑B of 1979, decided on 21st August, 1979.

----S. 497‑Petitioner specifically named by witnesses in their statements under S. 161, Cr. P. C. to have fired on house of complainant and signs of such firing available on house of complainant‑Confirmation of interim bail declined, in circum stances.

---S. 497 (2)‑Bail pressed on grounds : (i) case false and registered only for harassment of petitioners because of existing enmity on account of litigation ; (ii) cross‑firing and cross brick‑batting between parties taking place‑Vicarious liability for offence, . being yet to be determined on account of cross‑firing, brick- batting and existing enmity, interim bail confirmed‑Penal Code (XGV of 1860), Ss. 307, 506, 336, 148 & 149.

Shahid Kussain Kadri for Petitioners.

Kh. Muhammad Asghar for the State.

Saleem Shahnazi for the Complainant.

This is an application for bail before arrest on behalf of the petitioners in a case under section 307/506/336/148/149, P. P. C., registered against the petitioners at Police Station Hassan Abdal, District Attock, vide F. I. R. No. 115 dated 4th August, 1979.

2. According to the F. I. R. Abdul‑ Qayyum armed with a rifle, Muhammad Shahzad with kulhari, Muhammad Yunas with barchhi, Abdul Ghafoor with kulhari, Iftikhar with gun and Azim with lathi, attacked Abdul Hadi complainant at his house and called bad names to him. It is alleged that they threw brickbats and the complainant also in return did the same. Qayyum petitioner fired two shots from his riffle which hit the outer part of the house of the complainant. 11 is also alleged that the complainant also fired from his gun aimlessly in the air. It is brought to my notice by the Investigating Officer that there are some earlier cases pending between the parties and a case was registered for the abduction. of Mst. Saira and the complainant is related to Mst. Saira‑he is her cousin. I have seen the statements of Muhammad Maskeen, Jehangir and Siddiq recorded under section 161, Cr. P. C. They specifically mentioned Qayyum petitioner having fired two shots towards the house of the complainant.

3. It is contended by the learned counsel for the petitioners that the case is false and has been registered in order to harass them because there is enmity due to earlier litigation between the parties. He has also contended that there was a cross‑firing and cross‑brickbats and, therefore, the case falls under subsection (2) of section 497, Cr. P. C. and is one of' further inquiry.

4. Learned counsel for the State has‑taken the objection that the petitioners have not moved the Sessions Judge of the District in the first instance and, therefore, the petition should be dismissed. I have already allowed interim bail to the petitioners on 8th August, 1979 and the learned State counsel took this objection when the whole arguments were over. Since the case has been heard on merits, it is not possible now to send the petitioners back to the Sessions Judge for moving their bail application there.

5. The next objection raised by the learned counsel for the State was that all the petitioners were armed with deadly weapons and that the sentence provided for section 307, P. P. C., in case no injury is caused, is ten years.

6. I have considered the arguments of the learned counsel for the parties and I feel that this is a fit case for bail to the petitioners other than Abdul Qayyum petitioner who has been specifically named by the witnesses in their statements under section 161. Cr. P. C., and the Investigating Officer has also stated that, in fact, there were sigas of firing on the house of the complainant. With regard to other petitioners I feel that their vicarious liability for the offence is yet to be determined because there are circumstances, such as , the cross‑firing and cross brickbats and existing enmity between the parties particularly when the have not used their weapons with which they were armed, which would need further inquiry at the trial. In these circumstances, the interim bail granted to Abdul Qayyum petitioner is not confirmed while the bail granted to the other petitioners is hereby confirmed.

Order accordingly.

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