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Criminal Miscellaneous. No.3007/B of 1986, decided on 19th November, 1986.

---S. 497(5)--Penal Code (XLV of 1860) Ss.302 & 307/148/149- Pre-arrest bail, cancellation of--Vicarious liability, concept of Accused member of unlawful assembly--Accused armed with gun, resorting to ineffective firing--Fatal injury not attributed to accused--Joining of accused unlawful assembly while armed with, gun, held, would be immaterial whether fatal injury was attributed to him or not Accused could be guilty of offence punishable with death or imprisonment of life being burdened with constructive liability--Bail cancelled.

Muhammad Akbar v. The State 1978 S C M R 7; Munawar v. The State 1981 S C M R 1092; Babu v . The State 1981 S C R M 849 and Mst. Fazeelat Bibi v. Karam Khan 1986 S C M R 1628 ref.

---S. 497(2)--Penal Code (XLV of 1860), Ss. 302, 307/149 & 1-18--Bail cancellation of--Further inquiry, concept of- Reasonable grounds existing to believe accused having committed non-bailable offence--No opinion or finding by Investigating Officer or Trial Court to the contrary Challan not yet submitted in Court--Accused, held, could not be released on bail on ground of further inquiry without recording prerequisite findings--Exercise of discretion by Additional Sessions Judge allowing bail was found erroneous in circumstances.

Ibrahim v. Hayat Gul 1985 S C M R 382 ref.

---S. 497(5)--Penal Code (XLV of 1860). Ss. 302, 307/149 & 148- Pre-arrest bail--Principles of--Investigation prima facie found fair- Ineffective firing alleged against accused--Intention of accused manifest--Bail before arrest, held, was exceptional and rare remedy available in case of involvement with ulterior motive of disgracing a person--Exercise of discretion by Sessions Judge allowing pre-arrest bail was not in accordance with principles governing such exercise--Bail cancelled in circumstances.

Hidayat Ullah v. The State P L D 1949 Lah. 21; P L D 1984 S C 192 and Rashid Khan. v. The State 1986 S C M R 934 ref.

Syed Kalim Khurshid for Petitioner.

M. B. Zaman assisted by Syed Sajjad Hussain Jafari for Respondent No.l.

Saleem Shad for the State.

This petition is directed against the order, dated 9th of October, 1986 whereby the Additional Sessions Judge, Sheikhupura allowed pre-arrest bail to respondent No. 1 Muhammad Tufail in a case registered against him and others by the Police Station, Manawala, under the provisions of section 302/307 read with section 148/149 of the Pakistan Penal Code vide F.I.R. No. 219, dated 18th of September, 1986.

2 Briefly the prosecution case as unfolded in the F.I.R. by the complainant is that on the night preceding the day of occurrence a Majlis of the Shia community was held in an Imam Bara by Khawar Hussain Shah. One of the speakers, namely, Iqbal Hussain while delivering his speech uttered disparaging remarks against the Sunni community and remarked that their Kalma was not correct nor Holy Qur'an and the Hadis. The said speaker also remarked that the mosques of Ahl-e-Sunnat are places for adultery and drinking etc. According to the complainant the speaker also abused the companions of the Holy Prophet (may peace be upon him). The said speech was resented to the Sunni sect reported the matter to the police whereupon a case was also registered but no arrest took place. It was further stated in F.I . R. that after Fajar prayers many other persons also came to know of the speech made by Iqbal Hussain and thus all the inhabitants of the area went to the Police Station and the S.H.O. told them to leave the police station as a case had already been registered. It was stated that at 9-30 a.m. when the Sunni sect was returning from the police station, for proceeding to their houses, on their way, when they had, crossed the house of Khawar Hussain and reached near a turning, Khawar Hussain exhorted Shia community to catch hold of the members of the Sunni sect because they were the instrumental in the registration of the case against them. Soon thereafter, the inmates of the houses nearby, which belong to the Shia community, started throwing brick-bats from the roofs of the houses. Khawar Hussain started firing with his 7-MM rifle. Imtiaz Ali was armed with a gun, Babar Hussain armed with 7-MM rifle, Manzoor Hussain armed with gun and the respondent also armed with a 7-MM rifle indulged into indiscriminate firing. One Mirza Ashraf Baig hit Khalid Mahmood deceased with a brick hitting the head of the deceased. He also threw a second brick on the head of Khalid Mahmood. The shot fired by Khadim Hussain hit Muhammad Nadeem and Imtiaz also fired a shot hitting Nadeem. The incident created an alarm in the area and Sanawar Shah and Gulzar Hussain Shah also started firing. Talib Hussain was hit in the abdomen by a fire shot.

After the incident Khalid Mahmood died on his way to the hospital. Talib Hussain deceased also died while Nadeem suffered serious injuries.

3. The respondent, a police constable, invoked the jurisdiction of the learned Additional Sessions Judge for the grant of pre-arrest bail. The learned Additional Sessions Judge admitted the respondent to bail on the ground, that it was a case of further inquiry and ineffective firing by the respondent and also that the investigation was dishonestly conducted. It was further observed by the learned Additional Sessions, Judge that since the respondent had indulged into ineffective firing, therefore, the question of his vicarious liability was yet to be determined, therefore, the respondent deserved the grant of pre-arrest bail.

4. The determination of all the issues would necessitate to take into account the various judgments of the Supreme Court of Pakistan dealing with all these issues. Taking up the concept of vicarious liability, in such like cases, I would first refer to the judgment of the Supreme Court reported as Muhammad Akbar v. The State 1978 S C M R 7. In the aforesaid judgment a distinction was made between the persons who had caused injuries to the deceased and those who had not caused any injury to the deceased and accordingly the persons who had not touched the deceased were allowed bail. This case was considered by the Supreme Court of Pakistan in the case reported as Munawar v. The State 1981 S C M R 1092 and the August Court observed as under:---

"It is entirely erroneous to think that Supreme Court in 1978 SCMR 8, laid down any rule to the effect that a person who does not cause injuries to deceased cannot be burdened with constructive liability under section 34 or 149, P.P.C. at time of" considering question of bail. Question is essentially one which has to be determined on basis of facts of each case available on record at time question of bail comes up for consideration. If on allegations appearing on record conditions set out in sections 4 and 149, P.P.C. are made out then it cannot be said that accused concerned is not guilty of an offence punishable with death or imprisonment for life."

Similarly the question was again dealt with by the Supreme Court of Pakistan in the case reported as Babu v. The State 1981 S C M R 849 and it was observed as under:----

"As the allegation against the petitioner is that he has joined the unlawful assembly by arming himself with a gun, it is immaterial whether the fatal shot is attributed to him or not."

The same view was taken by the Supreme Court of Pakistan in the case reported as Munawar v. The State 1981 S C M R 1092, and it was observed as under:----

"Although the Investigating Officer is said of have found the respondent innocent yet his name yeas not shown in column No.2 but in column No.3 as a regular accused. No benefit can, therefore, accrue to the respondent on the basis of the opinion formed by the Investigating Officer during the investigation."

The same view was upheld by the Supreme Court of Pakistan in the case reported as Mst. Fazeelat Bibi v . Karam Khan 1986 S C M R 1628.

The learned Additional Sessions Judge, while admitting the respondent to pre-arrest bail placed reliance upon the following cases.

(1) 1978 P Cr. L J 194

(2) 1977 P Cr. L J 480

(3) 1985 P Cr. L J 517

(4) 1984 P Cr. L J 2167

(5) 1984 P Cr. L J 1026

(6) 1984.P Cr. L J 1000.

Except the one case, all other dealt with the bail after arrest and hence could not have been relied upon while admitting the respondent to pre-arrest bail Adverting to the concept of further inquiry, I am bound by the judgment of the Supreme Court of Pakistan reported as Ibrahim v. Hayat Gul 1985 S C M R 382. The August Court has observed as under:---

"Section 497, Cr.P.C. does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of police station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable o, grounds for believing that the accused has committed a non bailable offence. Without such finding by such finding, by such officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding That being so the accused could not be released on bail on ground of so-called further inquiry under subsection (2) of section 497, Cr.P.C."

5. In the light of these observations in the absence of any opinion by the Investigating Officer this case cannot be considered toy be the case of further inquiry. It was further pertinent to mention that the challan has not yet been submitted and, therefore, there is no opinion of the trial Court so as to consider it a case of further inquiry. In this view of the matter, 'the learned Additional Sessions Judge has erred in the exercise of discretion under section 497, Cr.P.C.

6. Coming now' to the crux of the matter, repeatedly it has been laid down that bail before 'arrest has to be granted in exceptional and rare cases and such remedy is available only when a person is being involved with an ulterior motive for being disgraced. In this behalf I am fortified by the judgment of this Court reported as Hidayat Ullah v. The State P L D 1949 Lah. 21 and the case P L D 1984 SC 192.

7. Syed Sajjad Raza Jafari, Advocate, vehemently argued that since the sectarian issue was involved, therefore, necessarily it is a mala fide case.

I am afraid the contention has no force. I have gone through the police file and at one stage of the investigation the respondent and his associates executed an agreement appointing three Arbitrators to decide the issue and it was agreed that if any one of these three Arbitrators on Holy Qur'an in mosque affirmed after holding a Punchayat, that in fact the respondent had participated in the occurrence, he should be treated as guilty. In pursuance of the said agreement an assembly took place in the mosque and after making a thorough probe two of the Arbitrators gave verdict against the respondent. Strictly speaking, such proceedings are not binding upon the Courts, but yet sight cannot be lost of such development. It was further argued that the inquiry by the Arbitrators was ex parte because the respondent and his associates did not join it. The Investigating Officer proved the same from the record that the respondent had himself absented from the proceedings. The learned Additional Sessions Judge on the basis of this material observed that the investigation was dishonest. I fail to understand as to how such findings were given by the learned Additional Sessions Judge. The material on the record is sufficient to prove that' the investigation prima facie was fair.

As far as the ineffective firing is concerned, in such like cases its benefit cannot be given to the respondent. The Supreme Court of Pakistan in the case reported as Rashid Khan v. The State 1986 SCMR 934 declined to grant bail and the order of the High Court refusing to; grant bail was upheld. I am not impressed by the argument of ineffective firing because in my view the intention of such person becomes manifest when the trigger is pressed.

In this view of the matter, I am of the view that it was not a fit case for the grant of pre-arrest bail and the exercise of the discretion by the learned Additional Sessions Judge is not in accordance with the principles governing such exercise. Accordingly this petition is allowed and the bail granted to the respondent is hereby cancelled.

S . A . Bail cancelled.

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