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Criminal Miscellaneous No. 124/13 of 1981, decided on 4th February 1981.
-- S. 497 read with Penal Code (XLV of 1860), S. 149-Bail, grant of-Principle of vicarious liability, application of-Common object of an unlawful assembly and participation of a person in such assembly-Relevant facts to determine liability of a member and individual role played by such member of secondary importance and not a material circumstance in his favour-Occur rence taking place because of fact that cattle belonging to petitioners damaged crops of deceased and deceased attacked when cattle removed from crops, resulting in his death-Circumstances, held, do not warrant grant of bail-Bail declined.-[Vicarious liability-- Common object].
Prof. Muhammad Haneef v. The State 1979 S C M R 459 and Muhammad and others v. The State P L D 1962 S C 450 ref.
Mohammad Nawaz Bhatti for Petitioner.
Zia Mahmud Mirza for Respondent.
Imtiaz Ahmad Chaudhry for the State.
The learned counsel appearing on behalf of the complainant in reply to the authorities referred to by the learned counsel for the petitioner has referred me to the judgments of the Supreme Court in the case of Prof. Muhammad Haneef v. The State (1979 8 C M R 459) and Muhammad and others v. The State (P L D 1962 S C 450). It has been argued that the point to be noticed in such case was whether there was an unlawful assembly and whether the petitioners had taken any part in furtherance of the common object. He has argued that if the participation of a person in an unlawful assembly is proved then his individual conduct will not be relevant. The learned counsel has argued that the facts of the case in Mahla v. The State (1976 P Cr. L J 1059) relied upon by the learned counsel for the petitioners are quite distinct and stand on their own footing.
2. It is true that there are a number of cases in which the accused persons have been allowed bail when they were accused of causing injuries only to the witnesses and not to the deceased, but there are also a number of cases in which appellants have been refused bail in similar circum stances. No firm rule appears to have been laid down by the superior Courts, but the application of section 149, P. P. C. is of paramount impor tance. This provision as also the sister provision of section 34, P. P. C. is specifically meant to mean the situation of the commission of an offence by a body of persons and where an offence is committed through al collective effort. When a common object of an unlawful assembly is proved and the petitioner is proved to be a member of the unlawful assembly then the individual role played by a member will be of secondary importance and not a material circumstance in favour of the petitioner.
3. The facts of the present case are that 5 persons including the two petitioners allegedly committed an offence, which resulted in the death of Shah Wali Khan. The occurrence took place because of the fact that cattle belonging to the petitioners were damaging the crops of the deceased. The deceased was attacked when the cattle were removed from the crops. The petitioners, Mehr Zaman and Amir Abdullah were both armed with weapons like Wahola and knife and they actually used them in causing injuries to the complainant. The circumstances of the case do not warrant the grant of bail to the petitioners. The application is, therefore, rejected.
Petition dismissed
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