' Petitioner seeks cancellation of post-arrest to respondent. No,1 by the learned Additional Sessions Judge, Jhelum through his order dated 4-9-2004, in the case F.I.R. No,149, dated 4-2-2004 under sections 302, 324/148/149, P.P.C., registered with Police Station Pind Dadan Khan, District Jhelum.
2. Gravamen of the charge, as it appears from the F.1.R., is that on 4-2-2004 at about 11-45 a.m.
Complainant along with his wife Mst. Nasreen, cousin Sana Ullah and others was collecting tricks, when Allah Bakhsh respondent No,1 armed with .8 MM rifle, lqbal son of Allah Bakhsh armed with .12 bore gun and other co-accused persons, resorted to firing, resulting in death of Mst. Nasreen Akhtar and a passerby minor girl Mst. Muqaddas and injuries to the P . Ws .
3. Respondent No,1 was arrested and remained on physical remand, leading to recovery of offence weapon and thereafter was remitted to judicial lock-up. He was allowed post-arrest bail by the learned Additional Sessions Judge, Jhelum, vide his order dated 4-9-2004, whereas his co- accused son and other companions are absconding. Respondent No,1 has appeared in response to notice by this Court and is represented through his counsel .As well.
4. Learned counsel for the petitioner submitted that besides nomination of respondent No,1 with specific role in the F.I.R., he acted in furtherance of common intention under a pre-planned murderous assault out of an already existing motive to kill the complainant and his wife. According to him, bail to respondent No,1 has erroneously been allowed by the learned Additional Sessions Judge relying on concessional statement of injured P.W., ignoring that he was also liable to the punishment of offence under section 302, P.P.C., as the provisions of section 34 of the Code (ibid) were fully attracted. Learned counsel for the petitioner further argued that a minor passerby girl Mst. Muqaddas also fell victim of firing of respondent No,1 and his companions and for this, as well, he was liable to the offence charged, but this aspect of the matter escaped notice of the learned Additional Sessions Judge at the time of passing of bail granting order, it was also argued that though petitioner had no case of bail, yet this discretion should not have been exercised unless and until his co-accused were arrested. In support of cancellation, judgment in the case of Ali Hassan v. Haji Khamiso and 2 others 1986 PCr.LJ 21 was relied to contend that respondent No,1 being, named in the F.I.R. Was vicariously liable for the offence under section 302/34, P.P.C. Having shared the common intention of killing the deceased.
5. Learned counsel appearing on behalf of respondent No, I opposed the arguments of the petitioner, supported the bail granting order and arged that in case the view formed by the learned Additional Sessions Judge was not incorrect, exercise of discretion by him, is not to be interfered as held by this Court in the case of Muhammad Akram v. The State and another 2004 PCr.LJ 1791. He further argued that the injury attributed to respondent No,1 was not supported by medical evidence, thus he was rightly released on bail according to the law laid down by the Honourable Supreme Court in the case of Muhammad Jahangir v. Kala Khan and another 2004 PCr.LJ 1843.
According to him, question of vicarious liability is to he determined at the time of conclusion of the trial and on the basis of it order granting bail passed within the discretion of the Court deserves no interference, as held by this Court in this case of Sultan Ahmad v. Mushtaq Ahmad and 3 others 2004 PCr.LJ 1772.
6. Learned counsel for the State opposed the bail granting order, supported the arguments alvanced by the learned counsel for the petitioner and argued that compromise, if any, with some eyewitness without concurrence of the heirs of the deceased, has no legal value and thus on the basis of it respondent No,1 should not have been ordered to be released on bail. It was also submitted that respondent No,1 was attributed specific role with clear nomination and that the occurrence being daylight, his participation under a pre-planned meditation deserves no leniency.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record. The bail granting order, on its bare perusal, reveals that it simply proceeded on the basis of compromise of respondent No,1 with the injured P.W. Sana Ullah, who received fire-arm injury at the hands of respondent No,1, at his leg. Firing of the assailants resulted in death of two human beings, one being Mst. Nasreen Akhtar wife of the complainant and the other Mst. Muqaddas a minor girl passing through the place of occurrence. The learned Additional Sessions Judge did not advert to vicarious liability of respondent No,1, which he had earned on account of his sharing the common intention in furtherance of common object/motive of killing.
Any firearm injury to any of the deceased may not have been attributed to respondent No,1, but by virtue of section 34, P.P.C., he was vicariously liable for the acts done by his companions. Case against the petitioner, thus was fully covered by prohibitory clause of section 497, Cr.P.C.
Disentitling him the concession of bail, especially at initial stages of investigation. Real son of respondent No,1 and his other co-accused are still absconding, which may not be of much value, but is a circumstance and should have been considered by the learned Additional Sessions Judge at the time of granting the bail. Respondent No,1 intentionally committed heinous offence with a motive and earned his release by entering into a compromise with one of the eye-witness at the back of the heirs of two deceased. Judgments in the cases of Muhammad Akram (supra), Muhammad Jahangir (supra) and Sultan Ahmed (supra) were not only delivered out of different facts but also proceeded in different circumstances. In the case of Muhammad Akram (supra), it was a case under section 324, P.P.C. And cancellation was refused as the view formed by the learned Sessions Judge was not found to be incorrect or perverse. Similarly, in the case of Muhammad Jahangir (supra), the absconding accused were not related to each other and were innocent, contrary to the case in hand. One of the absconding accused is real son of respondent No,1, thus the ratio of the precedent case was not applicable. Guiding principle given in the case of Sultan Ahmed (supra) of recognition of one reason alone for exercise of discretion of bail, is also not attracted, thus I with utmost respect to the precedent judgments, differ with the arguments of the learned counsel for respondent No,1. Actual participation, nomination and sharing the common intention of his co-accused are not denied by respondent No,1, depriving him from the concession of bail, at least, at this stage.
8. For the reasons noted above, I have no hesitation to hold that respondent No,1 was not entitled to grant of post-arrest bail, which has erroneously been granted by the learned Additional Sessions Judge, Jhelum, thus this petition is allowed and to respondent No,1, is cancelled. He be arrested and kept into custody, pending trial.
Bail cancelled.