1. ' MUHAMMAD SADIQ LEGHARI, J.---Through present application under section 497 (5), Cr. P.0 applicant/complainant Syed Abdullah Shah seeks cancellation of the bail granted to respondent Khadoo alias Khadim Hussain Brohi by this Court in a case for murder of Syed Umer Shah registered as Crime No,12/2004, Police Station Civil Lines, Larkana.
2. ' Case of prosecution is that Syed Umer Shah and his brother Abdullah Shah the complainant had dispute over the land with Wazir. Khadoo alias Khadim Hussain and Niaz Hussain Brohi and such litigation was pending in the Court. On 4-3-2004 Umer Shah and his brother Abdullah Shah went at the office of Mukhtiarkar Larkana for getting the true copies of their land record when they were sitting there with Himath Ali and Muhammad Yaqoob Meerani at about 12:30 noon Wazir, Khadoo alias Khadim Hussain and Niaz Hussain together one unlnown person all armed with pistols came there from the northern side. They challenged Umer Shah declaring that he shall not be spared and directed the P. Ws to keep away. Then Khadoo alias Khadim Hussain and Niaz Hussain caught hold of Umer Shah from his right and left arms and Wazir Hussain fired at him keeping his pistol on the temple. The bullet went through and though and the victim fell down. The unknown culprit is also said to have fired at Umer Shah but the bullet touched skin. All the four assailants then went back firing in the air. Umer Shah was immediately shifted to Chandka Medical Hospital Larkana where he succumbed to the injuries before any medical aid.
3. ' Syed Abdulla Shah promptly lodged the F.I.R. With Civil Lines Police. During he investigation the three culprits nominated in the F.I.R. Were arrested. On completion of the investigation they were sent for trial.
4. After dismissal of the bail plea of Khadoo alias Khadim Hussain by the learned trial Court this Court granted him bail vide order dated 13-10-2004 in Criminal Bail Application No,681/2004.
5. ' Complainant then filed present application for cancellation of the bail. It was sent to the Principal Seat for placing before the Honourable Judge having granted bail to the respondent but was returned under the orders passed by the Honourable Chief Justice on 28-11-2005 that the same be heard at Larkana according to the roaster.
6. ' On 1-2-2006 the arguments of the parties counsel were heard and the orders reserved. Now I proceed to record the order.
7. ' It was argued by Mr. Syed Asadullah Shah Advocate for complainant/the applicant that bail was granted to respondent Khadoo alias Khadim Hussain without considering the evidence against him in clear departure from the principles laid down by the Hon'ble Supreme Court. Elaborating his contention Mr. Shah contended that the Hon'ble Bench completely ignored the aspect of his (respondents) vicarious liability under section 34, PPC. He stated in continuity that the Hon'ble Court at apex has decided the bail pleas in the cases of the accused having facilitated the killing considering the question of vicarious liability in the light of the facts and circumstances of individual case. On the point he referred to the orders in the case of Umer Daraz 2004 SCM R 1019, case of Barkat Bibi 1979 SCM R 65 and case of Hakim Ali and others 1979 SCM R 114, case of Habibullah Khan 1985 PCr.LJ (SC) 744. In the first two cases the Hon'ble Supreme Court declined bail to the accused having facilitated the fatal blow whereas in the last two cases bail granted to such facilitator were cancelled applying the principle of vicarious liability.
8. ' Turning to the case of respondent Khadoo alias Khadim Hussain Mr. Shah stated that evidence against this man is that he had motive against Umer Shah and he came with his co-accused duly armed with pistol at the office of Mukhtiarkar where they all challenged Umer Shah and then he and one of his other companions held him (Umer Shah) and their third companion fired fatal shot keeping the barrel of his pistol on the temple of the victim. Thereafter they all went together firing in the air. According to the learned counsel that all fully attracts section 34, P.P.C. Therefore, the respondent was not entitled to the grant of bail. Mr. Shah further contended that Hon'ble Bench of this Court simply referred to two cases one of Bisharat Hussain 1978 SCMR 375 and the other of Shahid 1994 SCM R 393 which are distinguishable as the facts and circumstances of those cases were not identical to the facts of this case. In the last Mr. Shah contended that since the bail was granted ignoring the question of vicarious liability and in departure from the settled law therefore the same may be cancelled.
9. ' Mr. Safdar Ali Bhutto arguing on behalf of the respondent contended that the role attributed to the respondents is only of holding the deceased from his arm therefore a question of the applicability of section 34 is yet to be determined during the trial. He further contended that the Hon'ble Bench had rightly granted bail to the respondent relying upon the case of Bisharat Hussain (1978 SCM R 357) and Shahid (1994 SCM R 393) as his case was identical to those two cases. He further contended that even the respondent has not misused the concession of bail therefore it is not to be withdrawn from him.
10. Mr. Muhammad Ismail Bhutto the State Counsel has contended that the bail was granted with full justification. Before discussing and commenting upon the order attacked through the present application I must express that under subsection 5 of section 497, Cr.P.C, High Court is competent to cancel the bail granted by itself. On this point clear principle has been laid down by the Hon'ble Supreme Court in the case of Muhammad Ismail reported in 1981 SCM R 35. However, only that bail can be cancelled which has been granted by it applying wrong principles or in departure from the settled law.
11. ' As regards the question of bail in the cases of the persons facilitating the execution shot or fatal injury no hard and fast rule has been laid down by the Hon'ble Court at apex. Each case of such accused has always been dealt with individually on its own merits in the light of facts and circumstances. In the cases of 1.Bisharat Hussain 2. Shahid 3. Umer Daraz 4.Hakim Ali and three others 5. Barkat Bibi and 6.Nabi Bakhsh Khan supra question of granting bail or cancellation of bail granted to the accused alleged to have facilitated the killing was decided. In the first two cases bail was granted whereas in the third and fourth bail was declined and in the cases at Nos.5 and 6 the bail granted to such accused was cancelled. Those orders were passed considering the question of vicarious liability in the light of evidence against the accused in etch case individually.
12. Thus the settled position of law is that bail plea in such cases has to be decided on the basis of tentative assessm ent the material on the question of vicarious liability.
13. ' Now I come to the case in hand. First of all I consider it proper to reproduce the operative passage rather concluding observation of the Hon'ble Bench in the . It goes as under: "In view of the cases of Bisharat Hussain 1978 SCMR 375 and Shahid v. State 1994 SCM R 393 and the fact the applicant surrendered before the trial Court immediately after knowing his involvement in the crime in May, 2004. He attended proceedings till his bail was recalled on 24-6-2004."
14. A look at the above passage gives out that Hon'ble Bench did not assess tentatively the material collected against the respondent during the investigation. Nor did it consider the aspect of the vicarious liability. It simply based the grant of the bail on the cases of Bisharat Hussain and Shahid supra that also without entering into an exercise of comparing the facts and circumstances of those cases and the case in hand. In the present case the material on record shows that the respondent Khadoo alias Khadim Hussain had motive against the deceased, he came along with his three co-accused dully armed with pistol and actively participated in the joint operation by holding victim Umer Shah from his arm and facilitating the execution shot by his co-accused. Also there is evidence that he went along with his co-accused firing in the air after completing the operation. This evidence fully attracts the application of section 34, P.P.C. Therefore, the respondent Khadoo alias Khadim Hussain did not deserve the grant of bail. Obviously the bail was granted to him in departure from the above mentioned principle adhered to by the Hon'ble Supreme Court for grant or refusal of the bail in the cases of the accused facilitating the fatal injury. Therefore the same is hereby cancelled. The learned trial Court shall get respondent Khadoo alias Khadim Hussain arrested.