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Criminal Miscellaneous No. 3-B of 1983, decided on 13th February, 1983.
-- S. 497-Penal Code (XLV of 1860), S. 302/307/34-Bail, cancellation of-Vicarious liability, question of Accused, having a motive against deceased, alongwith his co-accused duly armed, not only waylaying deceased but also causing injury on his person-- Provisions of S. 34, P. P. C., held, prima facie attracted to the case of accused-Mere fact that accused attributed a simple injury to deceased, held further, not a ground to release accused on bail-- Bail cancelled, to circumstances.
Sahibzada Farooq Ali Khan for Petitioner.
Khan Ata Ullah Khan for the State.
Ch. Rashid Khan for Respondents.
This is an application for cancellation of bail granted to Bashir Ahmad and Fazil respondents 1 and 2 by the learned Additional Sessions Judge, Sahiwal.
2. This application to the extent of Bashir Ahmad was rejected by me on 9th January, 1983 and show-cause notice was issued to Fazil respon dent No. 2 alone.
3. The prosecution case is that Fazil respondent with others, in furtherance of their common intention launched murderous assault on Nazar Muhammad, deceased and Mst. Noor Sen P. W. and thereby caused death of Nazar Muhammad and injuries to Mst. Noor Sen.
4. As for the petitioner it has been alleged that he was armed with a dung and thereby caused injury on the knee of the deceased.
Learned counsel for the petitioner submits that the learned Additional Sessions Judge has allowed bail to Fazil, respondent No. 2 without legal justification inasmuch as he having caused injury to the deceased was equally liable under section 302/307/34, P.P.C.
6. As against this the learned counsel for the t respondent has defended the order of the learned Additional Sessions Judge on the ground that his case is quite distinguishable inasmuch as he did not cause fatal injury to the deceased.
7. After hearing the learned counsel and going through the record I find that Fazil has motive against the deceased; that he alongwith his co-accused duly armed not only waylaid the deceased but also caused injury on his person, which stands supported by the medical evidence. To my mind the provisions of section 34, P.P.C., prima facie attract to the case of Fazil, respondent No. 2. The learned Additional Sessions Judge has not properly appreciated the question of vicarious -liability inasmuch as the mere fact that the respondent has been attributed a simple injury to the deceased is not a ground to release him on bail, in the circumstances of the case.
8. For what has been stated above the bail granted to Fazil respondent No. 2, by the Additional Sessions Judge vide his order dated 7th December, 1982 is hereby cancelled, He may be taken into custody and detained in jail as an undertrial prisoner.
S. G. D. Bail cancelled.
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