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Criminal Miscellaneous No. 2970/B of 1986, decided on 6th December, 1986.

---S. 497(5)--Penal Code (XLV of 1860), S. 302/149--Bail, cancellation of--Petitioners alongwith their two associates variously armed with lethal weapons, forming themselves into an unlawful assembly with intention to kill deceased--Mere fact that petitioners fired only ineffective shots, held, would not make their case one of further inquiry.

Zafarullah Khan v. The State P L D 1986 Lah. 216; Muhammad Azam v. The State 1968 P Cr. L J 1567 and Arbab Ali v. Khamiso and others 1985 S C M R 195 ref.

---S. 497(5)--Penal Code (XLV of 1860), S.302/149--Bail, cancellation of--Vicarious liability--Petitioners alongwith their two associates variously armed with lethal weapons, forming themselves into an unlawful assembly, with intention to kill deceased--Grouping accused into two categories, one comprising those who hit deceased with fires shot by them and other consisting of those who indulged into ineffective firing, held, was highly objectionable and negated principle of vicarious liability.

Nazar Muhammad v. The State and another P L D 1978 SC 236, Muhammad Ayub Shah and 4 others v. Sarwar Shah and another 1979 SCMR 72 and lqbal Ahmad and others v. The State 1968 S C M R 7 ref .

---S. 497(5)--Penal Code (XLV of 1860), S.302/149--Bail cancellation of--Petitioners alongwith their two associates, waiting in a ditch allegedly fired fatal shots and thereafter chasing deceased--Bail earlier granted by Trial Court cancelled by High Court in circumstances.

Arif Iqbal Hussan Bhatti for Petitioner.

Furrukh Humayun for the State.

Vide F.I.R. No. 68 Police Station Sharaqpur Sharif, registered a case under the provisions of section 302 read with section 148/149, P.P.C. against the respondents for having caused the murder of Muhammad Ishaq deceased, the nephew and son-in-law of the complainant. The respondents vide order, dated 24-9-1986 were allowed bail by the learned Additional Sessions Judge, Sheikhupura. Through this application, the cancellation of bail allowed to the respondents has been sought.

2. The prosecution story in brief is that the complainant was displaced from his village on account of 1973 flood. The complainant alongwith the members of his family had shifted to village Sabeel Buri Attari, where the complainant and others settled on 12 Acres Evacuee Trust Property. Barkat, a land owner of the adjacent land had annoyed over the rehabilitation of the complainant side, because according to the complainant, the aforesaid Barkat wanted to take possession of this land. It was alleged in the F.I.R. that Barkat and others litigated over the issue, but all decisions by the authorities were given in favour of the complainant party.

3. On the fateful day at 5-30 p. m. the complainant was proceeding to his house after obtaining the milk. Talib Hussain son of Barkat Ali and Muhammad Yousuf, were also proceeding towards the village Sabeel Burj Attari from their Dera. According to the complainant, when the deceased passed from near the land of Mahmood Khan, he was fired from ditch, upon which the deceased took to his heels. Barkat Ali son of Ismail armed with a gun, Asghar Ali son of Ismail armed with a rifle, Niamat Ali armed with a gun, Karamat Ali armed with a rifle, Ashraf armed with a gun, Muhammad Hussain armed with a gun, Arshad and Niamat armed with their guns appeared at the scene and started chasing the deceased. Barkat and Niamat are alleged to have raised Lalkara not to spare the deceased, because he was standing between them and the land. During the chase, when the deceased reached near the Shattla field of Haji Muhammad Akhtar, he looked back, whereupon Muhammad Asghar fired hitting the chest of the deceased, upon which the deceased fell down. The firing and the hue and cry raised, attracted many villagers. Muhammad Ishaq was taken to Mayo Hospital by a car, where he was declared dead. Leaving the dead body in the hospital, the complainant proceeded to the police station, and he came across the police officer who recorded his statement reproduced above.

3. The investigation in this case changed many hands. Ultimately the Crimes Branch was entrusted with the investigation. During the investigation, empties fired from 7 mm rifle and the empties fired from gun were taken into possession. It is alleged on behalf of the petitioner, that the investigation in this case at the initial stage was not conducted honestly and some of the respondents with the help of the police succeeded to get interim bail before arrest and hence no recovery could be effected. About Asghar Ali, respondent, it was alleged that he fabricated evidence to establish his alibi, by stating that at the time of occurrence, he was under treatment in a hospital at Vehari. The petitioner /complainant produced affidavit to establish presence of Asghar Ali and his participation in the occurrence. Similarly, Karamat respondent also pleaded alibi and stated that at the crucial time, he was participating in a Kabaddi match. The investigation conducted by the Crimes Branch, reveals that the proof of admission of Muhammad Asghar respondent in hospital at Vehari was fake and had been obtained in connivance with the doctor and it further came to light that Muhammad Asghar respondent had nothing to do at Vehari. Similarly, the investigation reveals that Karamat respondent was not a Kabaddi player and, therefore, his participation in a match was a lie. Consequently, the investigation conducted by the Crimes Branch established that all the five respondents alongwith their two associates variously armed with lethal weapons had formed themselves into an unlawful assembly, the object of which was to kill Muhammad Ishaq deceased.

4. It is submitted by the learned counsel, that the investigation conducted by the Crimes Branch has unearthed the reality, inasmuch, as the respondents alongwith their associates having been armed were waiting in a ditch, for the passing of the deceased and when the deceased took to his heels, he was chased by all the respondents and the shot was fired by one of the respondents during the chase and he was responsible for causing the death of Muhammad Ishaq.

5. I have gone through the impugned order, dated 24-9-1986. The learned Additional Sessions Judge was persuaded to grant bail to the respondents, because the respondents had indulged into ineffective firing. It was further observed, by the learned Additional Sessions Judge, that ineffective firing by the five respondents has made their case, one of further enquiry and, therefore, they were entitled to the grant of bail under section 497(2), Cr.P.C. In this behalf, the learned Additional Sessions Judge had placed reliance on two cases reported as Zafarullah Khan v. The State P L D 1986 Lah. 216 and Muhammad Azam v. The State 1968 P Cr. L J 1567. I have perused these judgments, but as far as the concept of further enquiry is concerned, I am bound by the dictum laid down by the Supreme Court of Pakistan in the judgment reported as Arbab Ali v. Khamiso and others 1985 S C M R 195. It has been clearly laid down that the concept of further enquiry cannot be pressed into service, unless either the Investigating Officer supports the innocence of the accused, or the Court seized of the case arrives at such conclusion. Following the judgment of the Supreme Court of Pakistan, I would repel the contention that it was a case of further enquiry. It may be mentioned here, that the perusal of the order impugned reveals, that the learned Additional Sessions Judge has created two categories, one for those, who hit the deceased with the fires shot by them, and the other for those who had indulged into ineffective firing. I am afraid that such view to be taken in murder case is highly objectionable, because it negates the principle of vicarious liability as contained in sections 34 and 149, P.P.C. I am fortified in this view of the two judgments of the Supreme Court of Pakistan reported as Nazar Muhammad v. The State and another P L D 1978 SC 236 and Ayub Shah and 4 others v. Sarwar Shah and another 19791 SCMR 72. The view taken by the Supreme Court in the earlier case reported as Iqbal Ahmad and others v. The State 1968 S C M R 7 was departed in the subsequent cases and, therefore, such distinction being artificial amounts to laboured pretext. Considering the case from all angles and having heard the learned counsel for the parties, in my view the exercise of discretion by the learned Additional Sessions Judge, while granting bail to the respondents in a murder case is not based upon the sound judicial principles laid to govern such exercise. Prima facie the respondents having armed themselves were waiting in a ditch, and had also chased to fire at the deceased. These circumstances are sufficient to manifest their intention. However, I must clarify that these findings are only tentative in nature and would not effect the course of trial. Accordingly, I hereby set aside the impugned order and cancel the bail granted to respondents. They shall be taken into custody forthwith.

S. G. D. Order accordingly.

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