1. The applicant/complainant has sought cancellation of bail granted to the respondents Nos.1 and 2 by the learned Sessions Judge, Sukkur vide impugned order dated 27-9-2002.
2. Briefly stated the relevant facts are that the applicant Wazir Kalhoro lodged F.I.R. at Police Station Pano Akil. District Sukkur on 12-1-2002, that his younger brother Mumtaz, aged about 25 years, had purchased the lands from one Muhammad Saleem Punjabi about two years ago to the annoyance of Nawab son of Mazhar Ali alias Meval and Abdul Wahid son of Habibullah Kalhoro for the reason that the land was situated in their Muhaq and they had right to purchase the same. The plea of the complainant party was that the land was situated in their Muhaq as well. Altercation had taken place between Mumtaz and M/s. Abdul Waheed Kalhoro and Nawab Kalhoro. On preceding day, the complainant had gone to the land alongwith Mumtaz Ali and Ghulam Haider. They were returning from their lands after Isha Prayer. There was a torch held by the complainant. At about 10-00 p.m. they passed by the land of Wahid Dino Kalhoro near bridge of Sangrar minor. On the torch light they saw and identified Qadan armed with iron rod, Abdul Waheed, Ghulam Rasool, all sons of Habibulah Nawab son of Mazhar Ali alias Meval, Ghulam Mustafa son of Dodo and Ali Akbar son of Gul Hassan. The latter versons were empty-handed. On seeing the complainant pally, accused Nawab instigated the other accused persons saying that Mumtaz be caught hold of and be done away to death as he has purchased the lands with their Muhaq and has insulted them. On instigation of Nawab accused Qadan gave iron bar blow to Mumtaz which hit him on his right arm, and other accused persons caught hold of Mumtaz and pinned him on the ground. Accused Ghulam Rasool and Nawab caught hold of Mumtaz from his arms, accused Ghulam Mustafa and Ali. Akbar sat on his legs, while accused Abdul Wahid and Qadan started strangulating Mumtaz.
3. They raised alarm of murder on which the passerby Ali Asghar son of Ali Nawaz came running and saw the incident. They entreated the accused persons in the name of Allah and Rasool and after some time they left Mumtaz and ran away towards Western side in the standing crops. They then went to Mumtaz and found that he had sustained injuries on his arms and his one arm was fractured. There were marks on his neck and Mumtaz had died. Due -to night and odd hours, they remained with the dead body of Mumtaz for night and P.W. Ghulam Haider proceeded to his village to inform about the incident. In the morning they brought the dead body at police station and lodged F.I.R.
4. Police recorded the F.I.R. and referred the dead body for post-mortem. The medical examination confirmed that the cause of death was throttling.
5. The respondents 1 and 2 submitted application before the learned Sessions Judge, Sukkur. claiming the concession of bail mainly on the ground that it was a case of vicarious liability and fell within the purview of further inquiry. In support of bail plea, learned counsel for the respondents Nos. I and 2 placed reliance on the judgments in the case of Abdul Latif v. State 2002 PCr.L.1 702 and Shahid v.
6. State 1994 SCM R 393. The learned District Attorney .opposed the bail application but the learned Sessions Judge granted bail to respondents 1 and 2 merely placing reliance on the ratio of the above judgments.
7. Being aggrieved with the grant of bail to the respondents Nos.1 and 2, the complainant has submitted this application for the cancellation of their bail.
8. I have heard Mr. Muhammad Hamzo Buriro learned counsel for the applicant, Mr. Mumtaz All Siddiqui learned counsel for the respondent Nos.1 and 2 and Mr. Abdul Sattar Soomro, State Counsel.
9. Mr. Hamzo Buriro has vehemently assailed the grant of bail by the learned trial Court to the respondents Nos.1 and 2 on the ground that the learned trial Court has not applied its mind to the facts and circumstances in the right perspective and has not considered the relevant provision of law. In support of his contention that it is a fit case for cancellation of bail, he has placed reliance on the following judgments:--
(1) Mst. Barkat Bibi v. Gulzar 1979 SCM R 65;
(2) Hakim v. State 1979 SCM R 114;
(3) Gul Bahar v. State 2002 PCr.0 1277 (Kar.) (SB);
(4) Basheeran Bibi v. Nisar Ahmed Khan and others PLD 1990 SC 83;
(5) Nazar Muhammad v. The State and another PLD 1978 SC 236.
10. On the other hand, Mr. Mumtaz Ali Siddiqui, learned counsel for the respondents Nos.1 and 2 has supported the grant of bail to the respondents 1 and 2 and has submitted that there is no legal infirmity in the impugned order of the learned Sessions Judge warranting cancellation of bail. He has placed reliance on the case of Muhammad Ismail v. Patten Malak and others 1979 SCM R 91.
11. Mr. Abdul Sattar, State Counsel has not supported the impugned order and has stated that it is a fit case for cancellation of bail.
12. I have considered the contentions raised by the learned advocates for the parties and the material placed on record.
13. So far, the facts are concerned, they are not disputed for the purpose of bail application. Before coming to the merits of application, I would like to observe that there appears to be a lot of misgiving about the law of precedent in criminal cases. I have observed that the learned Sessions Judge has placed reliance on the reported judgments of superior Courts, without first considering whether the ratio of judgments is applicable or not. The Judges of subordinate judiciary merely reproduce the observations in the judgments of the superior Courts granting or refusing the bail, without considering the facts of the relevant case and thereafter they are swayed with the observations contained in the judgments of the superior Courts. This is not proper and appropriate manner of taking guidance from the judgments of the superior Courts. It is established principle of criminal administration of justice that the judgments of the superior Courts in criminal cases are confined to the particular case in which the judgment is given and are relevant to the particular set of facts and circumstances obtaining in the case in which the judgment is delivered. The facts and circumstances of two criminal cases are seldom on fours to each other. Thus while following observations in the judgments of superior Courts, in criminal cases, particularly circumstances of the cases are always required to be kept in view. On such finding of the superior Courts in a criminal case has the force of precedent, having binding effect, by which some principle of law is decided or deduced, learned Judges of the subordinate Judiciary should always be cautious, and careful in placing reliance on the judgments of the superior Courts in criminal cases and only such finding should be followed which contain a principle of law.
14. Now coming to the impugned order in this case, I find that the learned Sessions Judge has referred to the observations in the case of Abdul Latif v. The State 2002 PCr.LJ 702, that the presence of the accused at spot and the participation in the commission of offence were matters 'of further inquiry therefore accused persons were admitted to bail. The learned Sessions Judge did not realize that in the present case no body disputed the presence of respondents Nos.1 and 2 at the place of incident and there was no plea that they had not participated in the commission of offence. The only plea was that they have not actually strangulated the deceased and therefore the question of their vicarious liability required further inquiry. Thus the observations made in the case of Abdul Latif v. The State 2002 PCr.0 702 was not attracted at all.
15. So far the case of Shahid v. State 1994 SCM R 393 is concerned, the Honourable Supreme Court laid down a law that an accused is entitled to bail on the principle of consistency. If on similar set of facts, some accused persons are released on bail, co-accused are also entitled to be released on bail in the same case. In the present case there was no plea that other accused persons were released on bail and consequently respondents Nos.1 and 2 may also be released on bail. Thus the rule of consistency was not attracted at all. The learned Sessions Judge has referred another judgment of the Honourable Supreme Court in the case of Mehboob Akhter 1995 SCM R 310. In the said case an accused was alleged to have caught hqld of deceased before he was given injuries by his co-accused. It was held to be a case of further inquiry. The full facts of the case are not available.
16. Now I will examine the contentions raised by the learned advocates in this case. Mr. Muhammad Hamzo Buriro, learned counsel for the applicant has contended that the respondents Nos.1 and 2 shared the common object of unlawful assembly and consequently are fully responsible for the act of two co-accused who strangulated the deceased Mumtaz. He submitted that the respondents Nos.1 and 2 actively participated by catching hold of the deceased Mumtaz and allowing the principal accused to strangulate the deceased and therefore the learned Sessions Judge was not justified in granting the bail, which is liable to be cancelled. In this regard, he has placed reliance on the case of Mst. Barkat Bibi v. Gulzar (supra). The relevant facts in the case were that two co- accused persons entered into the petitioner's house. One dragged the deceased lady out of the house. Her mother attempted to rescue her but she was given a dagger blow by another accused on her hand. Thereafter one accused caught hold of the deceased and another inflicted the dagger blow causing her death. A case under sections 302/34, P.P.C. was registered. The bail application of both the accused persons was rejected by the learned trial Court. However, a learned Single Judge of the Lahore High Court granted bail to the accused who was not armed and had not caused any injury to the deceased. Petition for Cancellation of bail was filed before the Honourable Supreme Court contending that the bail granted was not in accordance with the correct principles governing the grant of bail. It was further contended that the accused who was granted bail colluded with his co-accused and played an active role in the transaction of catching hold of the deceased while co-accused inflicted the fatal blows. It was urged that the provision of section 34, P.P.C. were attracted. On behalf of the accused a plea was taken that insignificant role was attributed therefore it was not possible to ascribe any common intention to the petitioner.
17. The Honourable Supreme Court agreed with the contentions raised on behalf of petitioner seeking cancellation of bail and observed as follows:-- "The contentions raised by the learned counsel for the petitioners appear to have some force. In view of the specific roll attributed to respondent No,1 in the F.I.R. by an injured eye-witness Mst.
18. Barkat Bibi, the petitioner/complainant, the provision of section 34, P.P.C. were prima facie attracted."
19. The Honourable Supreme Court ultimately cancelled the bail granted by the learned Single Judge of the Lahore High Court and directed the trial Court to take the accused in custody.
20. In the second case of Hakim Ali v. State, the plea for bail was raised merely on the ground that the fatal injuries were not caused by the petitioners. The Honourable Supreme Court observed that the petitioners were accompanying the principal accused persons who attacked the complainant party and there was a specific allegation against the petitioners that they clasped two witnesses to enable and facilitate the principal accused to inflict knife injuries on deceased. As such it was not possible to rule out at the stage of bail, their participation in the offence With which they were charged. The Honourable Supreme Court did not accept the contentions and rejected the bail plea.
21. In the third case of Gul Bahar v. State, the bail plea was refused by an order authored by me. In this judgment, the law relating to the bail has been considered in some detail and it has been held by me as follows:-- "However, the above discussion does not mean that any person alleged of having committed non- bailable offences is not to be released on bail. It only means that before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsection
(1) of section 497 and subsection (2) of section 497, Cr.P.C. in its totality and the sine qua non, for releasing the accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non-bailable offence as provided in subsections (1) and (2) of section 497 or to, prevent the abuse of the process of Court or to do justice, keeping in view the particular facts of each case. The bail in the cases of commission of non-bailable offences and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. is not to be granted as a matter of course, with a simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C. as discussed above.
22. Applying the above principles to the facts of the present case I find that according to the F.I.R. a very active role has been attributed to the present applicants, whereby they made the victim helpless and facilitated the third accused to take away the life of deceased 'just with one dagger blow which the third accused could land at any point at his will. The single dagger blow given by the third accused landed at the heart of the deceased and it became sufficient to cause his death.
23. If the present two applicants would not have made the deceased helpless, he could have resisted, he could have struggled to save his life, he could push the assailant, he could have snatched dagger, he could have run away from the place of incident and in the process he might have received minor injuries or at the most such injuries which would not have been fatal. All this could not be done because the present two applicants caught hold of the deceased making him a total prey to the design of third accused and the innocent sole was done to death. The only tentative assessm ent which can be made at this stage is that the applicants acted in furtherance of the common intention of all. If such act cannot be termed as active role in the commission of murder of deceased, then hardly there can be any other act which can be termed as active role in the commission of murder. By virtue of provision contained in section 34, P.P.C. each person is liable for criminal act done in furtherance of common intention of all, as if it was done by each one of them alone."
24. In the fourth case of Bashiran Bibi v. Nisar Ahmed Khan, the petitioner sought cancellation of bail granted by the Lahore High Court. In this case the question pertaining to the grant of bail on the ground of further inquiry envisaged under subsection (2) to section 497, Cr.P.C. came for consideration. The Honourable Supreme Court reiterated the dictum laid down in the case of Arbab Ali v. Khamiso and others 1985 SCM R 195 and held as follows: "After hearing learned counsel for the parties as well as the Additional Advocate-General, we are of the view that subsection (2) to section 497, Cr.P.C. has not been properly appreciated by the learned Judge.
25. In the case of Arbab Ali v. Khamiso and others (supra), it was observed:-- "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of 'further inquiry'. It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in sub-section (I) of section 497 under subsection (2) of section 497, Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the police officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused had committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court.
26. It is, therefore, obvious that the expression, ' further inquiry' is not to be taken lightly nor is to be extended unnecessarily"
27. The Honourable Supreme Court after holding that the benefit of further inquiry has been unnecessarily extended to the accused, cancelled the bail granted by the High Court.
28. In the fifth case Nazar Muhammad v. State (supra) a plea was raised that the petitioner's shot did not hit the deceased and merely injury on non-vital part of the body of the witness was caused, therefore on the basis of decision of the Honourable Supreme Court in the case of Muhammad Akbar v. State 1978 SCM R 7 it was a case of further inquiry and consequently the Lahore High Court was not justified in canceling the bail granted by the trial Court. The Honourable Supreme Court held as follows:-- "So far as the above case is concerned, we may observe that every case of criminal nature proceeds on its own facts and a rule of universal application cannot be deduced from the decision of any particular case. Be that as it may, the facts of the precedent case were that eight persons were accused of offences under sections 302, 334, 148 and 149, P.P.C. for having formed an unlawful assembly while armed with sticks and Vaholas, and in pursuance of the common object thereof, caused the death of one Ghulam Rasul. Two of the assailants were not alleged to have inflicted any injury to the deceased, but were alleged to have caused a simple injury to the complainant.
29. Without examining fully the aspect if the appellants had formed themselves into an unlawful assembly, it was found that the case of the two accused who did not cause any injury to the deceased stood on a different footing and as such the said two accused could not prima facie, be held to have committed any offence punishable with death or life imprisonment and hence they were admitted to bail.
30. In the instant case, as is apparent from the facts noticed above, the complainant party was waylaid by the accused persons killing one of them. The petitioner was armed with a gun which he fired in the alleged attack injuring Sadaqat Ijaz P.W. Once it is accepted that the petitioner was a member of the unlawful assembly so that he shared the common intention with those who are alleged to have caused the death of Rafaqat Ifikhar, it is wholly immaterial that Sadaqat Ijaz sustained a simple injury. Prima facie, we are of the view that on the facts, as presently appearing, the petitioner is vicariously responsible for the major offences and his case is covered by section 497(1) of the Code of Criminal Procedure.
31. We would like to clarify that in the case cited above Muhammad Akbar and others v. State it was never intended to lay down as a rule of law that the Courts at bail stage should not even prima facie examine the question of constructive liability in the case where the accused is not attributed any injury to the deceased and is alleged to have caused injuries to the P.Ws. As Defined in section 141, P.P.C. an assembly of five or more persons is designated as an unlawful assembly if the common objection of the persons composing it, inter alia is to commit any mischief or criminal trespass or other offence. There are other provisions such as sections 34, 109 and 120-B of the Penal Code which envisage the rule of constructive liability. The Courts, on the basis of the material placed before them, such as FIR., statements recorded under section 161, Cr.P.C. are fully justified, even at the bail stage, to go into the question whether a case of constructive liability is made out.
32. This, however, is subject to the rule of caution laid down in Manzoor v. State namely:-- "It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-bailable cases is a matter within the discretion of the Courts which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case and all the otherrelevant circumstances surrounding the occurrence."
33. In the instant case, however, we are inclined to agree with the view taken by the learned Judge in the High Court that, prima facie the principle of vicarious liability is attracted to the case of the petitioner. No good ground exists for interference with the order of the High Court. We, accordingly, refuse to grant leave to appeal."
34. On the basis of law laid down in the above judgments, Mr. Muhammad Hamzo Buriro, Advocate for the applicant has strenuously argued that the learned Sessions Judge seriously erred in granting the bail to the respondents 1 and 2 which blatantly violates the law pertaining to the vicarious liability and further inquiry envisaged in subsection (2) of section 497, Cr.P.C. He has vehemently argued that the impugned order of the learned Sessions Judge is liable to be cancelled.
35. This brings me to the judgment of the Honourable Supreme Court in the case of Muhammad Ismail (supra) on which Mr. Mumtaz Ali has placed reliance. In this case the bail was granted by a Single Judge of the Peshawar High Court to one accused while bail plea of another accused was rejected.
36. The learned Single Judge had granted bail for the reason that an ineffective firing was attributed to the accused and therefore he was eligible to the privilege of bail. The Honourable Supreme Court observed that in the facts and Circumstances of the case it was open to the learned Single Judge to hold that the case of the present accused whose firing did not hit to any body was apparently distinguishable even for the purpose of considering the applicability of section 34, P.P.C. at the bail stage. The Honourable Supreme Court further observed that the matter of bail was essentially in the discretion of the High Court and if after appreciating over all facts and the circumstances of the case it was held that the case of the respondents had features of distinction from the case of other accused, the order of the learned Single Judge cannot be said to suffer from any legal and factual infirmity of any fundamental nature so as to warrant interference by the Honourable Supreme Court.
37. Keeping in view of the facts, circumstances of the sail' case and principle of law laid down by the Honourable Supreme Court, this case is of no help to the contention raised by Mr. Mumtaz Ali Siddiqui.
38. The learned State Counsel in support of his contention for cancellation of bail placed reliance on another judgment authored by me in the case of Muhammad. Yousuf v. State 2002 PCr.LJ 1645 in which the bail was refused on the ground that the applicants could not be absolved of vicarious liability of causing death. In the said judgment it has been further observed that the judgments in the criminal cases are confined to the facts of particular case and are not to be treated as precedent until and unless the facts of the two cases are similar, which are very seldom. It has been further held in the above judgment that "the judgment in a criminal case shall have the force of precedent if any principle of law has been propounded which is of a general application. In' the said judgment reliance was placed on the judgment of the Honourable Supreme Court in the case of Munawar v. State 1981 SCM R 1092 in which it has been held that the view that a person who does not cause injury to the deceased cannot be burdened with constructive liability at the time of considering the question of bail was not correct. It was further observed by the Honourable Supreme Court that if such condition set out in provision of law spelling out constructive liability of accused concerned is fulfilled, he can be said to be guilty of an offence punishable with death or imprisonment for life.
39. Applying the principles laid down in the judgments referred to above I find that in the facts and circumstances of the present case, the principle of vicarious liability is fully attracted and the rule relating to grant of bail for the reasons of further inquiry, is not attracted at all. The respondents 1 and 2 are alleged to have fully participated in furtherance of their common object of committing murder of the deceased Mumtaz. The intention is a mental phenomenon, which is to be discovered from the outward circumstances and the overt acts committed by the accused persons. In the present case there is allegation that co-accused Nawab Kalhoro instigated the other accused persons to commit murder of deceased Mumtaz for having purchased the lands in their Muliag thereby causing their insult. In pursuance of this instigation all the accused persons pounced upon the deceased, overpowered him and pinned down him to the ground. The respondents Nos.1 and 2 sat on the legs of the deceased, Nawab and Ghulam Rasool co-accused caught hold of the deceased from his arms, while co-accused Abdul Wahid and Qadan strangulated the deceased.
40. Now all these facts are to be considered in their totality and not in isolation. Considering of the isolated facts separating them from the chain of he against the of appreciation of the facts in any judicial proceedings. If different allegations are considered in isolation instead of considering the same in the totality of the transaction, it is like. to looses its entire' impact. Thus in the present case I find that the two accused persons conveniently throttled the deceased because the deceased was made totally helpless .by four other accused persons who were holding from his legs and arms. Not only the provision contained in section 149, P.P.C. provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly likely to be committed in prosecution of that object, every person who at the time of committing of that offence, is a member of same assembly and is guilty of that offence, the provisions contained in section -114 are also attracted which has been referred to in the F.I.R. Section 114, P.P.C. is to be with section 109, P.P.C. provides for punishment of offence committed in pursuance of abetment.
41. Explanation II to section 107, P.P.C. provides that whoever either prior to or at the time of commission of at; act does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to aid the doing of that act. In the present case, the holding of legs of the deceased by the respondents, 1 and 2 clearly amounted to facilitation of the commission of murder and consequently the respondents Nos.1 and 2 cannot be absolved of the responsibility to commit the murder of deceased.
42. For the foregoing reasons it is held that the learned Sessions Judge, Sukkur misdirected in granting bail to the respondents 1 and 2 by ignoring the principle of vicarious liability enshrined in P.P.C. and
1. unnecessarily extending the concession of further inquiry to the respondents Nos.1 and 2 without adhering to the condition precedent of holding that there are no reasonable grounds for believing that the respondents Nos.1 and 2 have committed a non-bailable offence. A plain reading of subsection (2) of section 497, Cr.P.C. shows that no Court is empowered to release an accused on bail on the ground of further inquiry without first coming to the conclusion that there are no reasonable grounds for believing that the accused has not committed non-bailable offence.
43. The impugned order of the learned Sessions Judge, Sukkur is therefore set aside and the bail granted to the respondents Nos.1 and 2 is hereby cancelled. The application is allowed.
44. It has been informed by Mr. Mumtaz Ali Siddiqui, learned counsel for the respondents Nos.1 and 2 that they have not furnished surety in pursuance of the impugned order of the learned Sessions Judge, Sukkur and are still in custody. The office is directed to communicate this order immediately to the learned trial Court so that the respondents Nos.1 and 2 may not be released on bail.