' KHAWAJA MUHAMMAD SAEED, J.--- This appeal is directed against the judgment passed by the learned Chief Justice of the Shariat Court on 25-6-2002.
2. The relevant facts, briefly stated are, that a case was registered vide F.I.R. No,42 of 2001 on 26-4- 2001 at Police Station Dadyal on the report of one Abdul Aziz, in which he had alleged that he was sleeping alongwith his wife on the roof of his house when three persons, whom he did not know, came there and ordered him to stand up as he would be killed according to said report, one out of the assailants who was carrying .12 bore shotgun was of small size. He fired at the belly of Abdul Aziz, which caused serious injury on his person. The assailants ran away from the scene of occurrence. Suspicion was expressed by him that as he was involved in a litigation with one Asghar resident of Haveli over the land which was pending in the Court, and in this respect, was threatened by one Raja Qurban few days before the occurrence that he should leave the prosecution of the case otherwise it will not be good for him. He suspected that one of the assailants was Raja Qurban and held Asghar resident of Haveli responsible for manoeuvering the occurrence. Thereafter the said complainant died. Initially a case was registered under sections 324, 337-F(i), 458, 109, 34, 323, A.P.C. Later on due to death of complainant a case under section 302, A.P.C. Was also registered.
The police arrested Muhammad Banaras, from, whom it recovered a gun, and Allah Ditta from whom a knife was recovered. Sabir Hussain was also involved in the investigation. The fire shot which caused injury to Abdul Aziz and resulted in his death was attributed to one Sabir Hussain who is absconding. The accused-respondents moved an application for their release on bail on the ground that they have been involved in the case on false grounds without investigating those persons who were nominated by the deceased-complainant in his F.I.R. It was further their case that the knife recovered from Allah Ditta is vegetable cutter and no injury with knife was found on the body of the deceased. In the same way, the case of Muhammad Banaras was that even though a shotgun has been recovered from him but it is not the case of the complainant or the prosecution that he used the same. The injury on the person of the deceased is attributed to Sabir Hussain. Therefore, his involvement in the case is also one of further inquiry. He requested for bail.
The learned District Qazi allowed bail to the accused-respondents vide order, dated 28-9-2001. The son of deceased-complainant, Riasat Hussain, invoked the revisional jurisdiction of the Shariat Court through a revision petition on 30-10-2001 against the above referred bail granting order of the District Qazi. He also filed a revision petition against the order, dated 18-9-2001, whereby the statements of the accused-respondents under section 242, Cr.P.C., were recorded. Both the revision petitions have been disposed of through a single order which is under challenge in the present appeal before this Court.
3. Ch. Ali Muhammad Chacha, the learned counsel for the appellant, has argued that the order passed by a member of the District Criminal Court is bad in law, as such, it is liable to be set aside on the ground that when this order was passed on 28-9-2001, the learned Sessions Judge was also present in the Court who was not associated by the other Member of the Court in bail matter. In the presence of Sessions Judge, the order passed by the' District Qazi is without jurisdictional competence and liable to be set aside. On facts he argued that Muhammad Banaras and Allah Ditta in investigation were found present at the time of occurrence with principal accused, Sabir Hussain. They are, therefore, liable for vicarious liability and can be awarded the same punishment which can be awarded to the principal accused. He further argued that in the investigation, the cover of knife belonging to accused. Allah Ditta, was recovered at the scene of occurrence. In fact the accused party had gone to commit dacoity when Abdul Aziz woke up, he was fired at by Sabir Hussain. The accused party had no business to go over the roof of the house of the deceased- complainant at 11-00 p.m. This shows that all the accused persons had common object and are, therefore, vicariously liable for the act of the principal accused. The bail on facts, therefore, was wrongly allowed to the accused-respondents. The learned counsel further argued that the case as put up in the Court by the prosecution, was not put to the accused-respondents while recording their statements under section 242, Cr.P.C. Therefore, he requested the trial Court be directed to comply with the provisions of the Code of Criminal Procedure and frame charge under section 242.
Cr.P.C. In the light of the case of the prosecution. Sardar Abdul Razik Khan, the learned Additional Advocate-General appearing for the State, supported the arguments raised by the learned counsel for the appellant.
4. While controverting the arguments of learned counsel for the appellant, it was argued by the learned counsel for the accused-respondents, that the arguments on bail application, moved by the accused-respondents, were heard on 19-9-2001 and the learned Sessions Judge, the other member of the Court, was on 15 days leave. The case was posted for judgment to 25-9-2001 by the learned Qazi. However, on that date, the learned Qazi also, on account of some exigency, was on leave. Therefore, the office fixed the date for judgment as 28-9-2001 when the judgment was announced by the District Qazi. They supported their contentions from the judgment of the District Qazi, the learned member of the District Criminal Court. They also opposed that statements of the accused under section 242, Cr.P.C., were not recorded in accordance with law. According to them, the charge was put to the accused- respondents which was denied by them. The purpose of recording the statements is to ask the prosecution to prove its case if the guilt is not admitted by the accused party.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The case was registered on the report of the deceased, Abdul Aziz, who was injured by a small size person with a shotgun on the roof of his house. He expressed suspicion about Asghar and Raja Qurban on account of litigation with them in respect of some land which was going on in the Court of law. The police, in the investigation, came to the conclusion that the occurrence was committed by Sabir Hussain with the help of Allah Ditta and Muhammad Banaras who had gone at the scene of occurrence with a purpose to commit dacoity. The gun recovered from Muhammad Banaras, according, to investigation was not used by him for the commission of offence. In the same way, the knife recovered from Allah Ditta, accused-respondent, does not appear to have been used as no knife injury was noticed by the doctor while conducting the post-mortem of the deceased. As stated earlier, the accused-respondents were not nominated by the deceased - complainant in the F.I.R. Nor were identified by his wife during investigation and the weapon of offence recovered from them, prima facie, have not been used in the occurrence. Therefore, the District Qazi was justified in observing that the case of the accused- respondents is one of further inquiry. The benefit of bail extended to them by him was rightly upheld by the learned Chief Justice of the Shariat Court vide his order under challenge in the present appeal.
6. The other point raised in this appeal about recording of statements of accused-respondents under section 242, Cr.P.C. Is also without any force. The formal charge is put to the accused persons under section 242, Cr.P.C. To know whether they admit the charge or, deny it. In the present case the accused-respondents have pleaded not guilty and the prosecution has to prove the case against them. The accused-respondents do not feel that they have been prejudiced by putting the charge to them under section 242, Cr.P.C. The complainant has challenged this part of the proceedings conducted by the trial Court without any lawful justification. The learned Chief Justice of the Shariat Court, therefore, was justified to dismiss the revision petition whereby recording of statements by the Court under section 242, Cr.P.C., was challenged.
' In view of above, finding no force in this appeal, the same is dismissed.