' MRs. IRSHAD QAISER, J.---Through the present petition filed under section 497(5), Cr.P.C., Mst.
Shafeen Akhtar petitioner seeks cancellation of to accused/respondents Nos.1 to 3 namely Malik Mumraiz, Aamir and Rifaqat by learned sessions Judge vide order dated 7-10-2013 in case registered vide F.I.R. No.355 dated 30-8-2013 under sections 302/324/34, P.P.C. Police station Hattar District Haripur.
2. The brief and essential facts leading to the present petition are that on 30-8-2013 at 1600 hours the injured complainant Mst. Shafeen Akhtar brought the dead bodies of her husband Javed Akhtar and son Moshin Javed at Emergency Ward DHQ Hospital Haripur and reported the matter to the police that on the day of occurrence, she along with her husband Javed and son Mohsin Javed were present in their house. It was about 2-30 p.m. When they had heard the report of fire shot outside their house. Consequently she along with her husband and son came out from the house and saw that accused sayin Nazakat armed with pistol, Ehtisham, Aamir, Rafaqat armed with Kalashnikovs, Mumraiz armed with rifle, were coming towards their house. In the meantime, accused Mumraiz ordered his co-accused to fire at the complainant party, as a result of which accused sayin Nazakat fired at Javed Akhtar while accused Ehtisham fired at Mohsin Javed with his Kalashnikov, with which they were got hit and injured. Accused Mumraiz gave a butt blow to complainant on her head while accused Aamir and Rafaqat also made firing at the complainant and both the deceased, but the complainant escaped unhurt. Both Javed Akhtar and Mohsin Javed succumbed to the injuries on their way to the hospital. Beside the complainant, the occurrence is stated to have been witnessed by saeed Akhtar and Muhammad Irshad. Motive for the offence is shown as an altercation between deceased Mohsin Javed and accused Ehtisham and Aamir prior to the instant occurrence.
3. Learned counsel for the petitioner contended that the present respondents along with accused Ehtisham and Nazakat are directly charged in the promptly lodged F.I.R. It is daylight occurrence.
Parties are known to each other, therefore, question of misidentification does not arise. That accused came with arms from a long distance and attacked the victim party resulting in two murders and one attempted to murder. The conduct of all the accused reveals that they had made pre-concert having common object and armed themselves with deadly weapons, thus, they all are liable for the ultimate offence committed. As such, making distinguishing on the basis of individual role is no ground for release of respondents Nos.1 to 3 on bail. That according to PM report Mohsin Javed deceased had multiple fire arm injuries on his body. Aamir and Rafaqat are charged for firing with their Kalashnikov on all the victims. Mumraiz had given blow with rifle butt on the head of the complainant which is a vital part. All the accused acted toward attainment of the common object by pre-planning, premeditation and having armed themselves with deadly weapons. Both the parties are in inimical terms since long and many cases occurred between them earlier as well. The present motive i.e. Quarrel between the parties in the mosque after "Juma Prayer" was deliberate criminal act which certainly calls for serious view. Reliance was placed on Rana Muhammad safdar v. Gulzar Ali alias Papoo and another (1999 PCr.LJ 1), Khamiso and another v. The state (1999 PCr.LJ 9), Federation of Pakistan through the General Manager v. Mrs. Riaz Latif (PLD 1990 sC 90), lqbal Hussain v. Abdul sattar and another (PLD 1990 sC 758), Messrs Ali Woollen Mills Ltd. v. Industrial Development Bank of Pakistan and 3 others (PLD 1990 sC 763), Rahim Bakhsh v.
Shah Nawaz and another (2003 sCMR 1966), Vikio v. Abdullah and another (1980 PCr.LJ 602), Tassaduq Hussain v. Nouman saeed and 2 others (2010 PCr.LJ 1990), Muhammad Rahseed Hassan v. The state (NAB) (2010 PCr.LJ 1902 Karachi), Murad Khan v. Fazal-e-subhan and another (PLD 1983 sC 82), Kamal Din v. The state (PLD 1983 sC 85), sanaullah and 3 others v. The state (1983 sCMR 15), Muhammad Hussain and another v. Muhammad Khan (1983 sCMR 16) and Rafiq Ahmad v. Ghulam Rasool and others (1983 sCMR 17).
4. The learned AAG appearing on behalf of state contended that respondents are directly charged for effective/ineffective firing and Lalkara and have fully participated in the occurrence and also attempted at the life of the complainant. There are reasonable grounds to connect the accused/respondents with the crime falls within the prohibitory clause. Hence, the bail granting order was not sustainable under the law being null and void.
5. Conversely, learned counsel for the accused/respondents supported the impugned bail order and contended that the present respondents are not charged for effective firing. That absconding accused Nizakat and arrested accused Ehtisham were charged for the role of effective firing at deceased Javed and Mohsin Javed, respectively. Whereas respondents are charged for the role of Lalkara as well as ineffective firing. That the case of the respondents comes within the purview of further inquiry. That investigation in the case is complete and they are no more required to investigation agency. No purpose would be served to send the accused/respondents behind the bars. That they have been released on bail by competent Court of law after considering all the relevant facts and their bail cannot be cancelled on flimsy grounds. That the grounds taken for the grant of bail to respondents by the learned sessions Judge were justified from the record of the case. That once the accused is released on bail, then cancellation thereof would require strong and unexceptional grounds and reasons. He further contended that principle of vicarious liability cannot be dealt with at bail stage. Reliance was placed on Aurangzeb v. Shakeel and another (2008 PCr.LJ 1565), Ajmal Khan v. Liaqat Hayat and another (PLD 1998 sC 97), Nazir Nadeem .v. State ((sic.) PCr.LJ 160) and Faisal Waheed v. State (1999 PCr.LJ Karachi 882).
6. I have heard learned counsel for the parties and perused the available record with their assistance.
7. The grounds prevailed before the learned sessions Judge Haripur for granting of bail to respondents and rendered in the impugned order are that it is a case of further inquiry under section 497(2), Cr.P.C. The relevant portion of the impugned order is reproduced which is as follows:-- "That five accused persons are charged in the instant case out of whom accused sayin Nazakat and Ehtisham are charged for the role of effective firing at deceased Javed Akhtar and Mohsin Javed, respectively, whereas the present accused/petitioners are charged for the role of Lalkara, as well as for ineffective firing and causing blunt injury to the complainant. Admittedly, deceased Javed Akhtar has received a single fire arm injury on abdomen which is attributed to accused sayin Nazakat, while deceased Mohsin Javed has received multiple firearm injuries on its body which as per contents of the F.I.R., were caused by accused Ehtisham by firing at the deceased on different parts of the body, therefore, the case of present accused/respondents stands on different footing th. The case of co-accused sayin Nazakat and Ehtisham. Since, no avert act except the role of Lalkara and ineffective firing has been attributed to the accused/petitioners, therefore, the case of accused/petitioner comes under the ambit of further inquiry, within the meaning of subsection (2) of section 497, Cr.P.C."
8. The undisputed facts of the case, as revealed from the records are that five persons armed with deadly weapons came to the spot and started firing outside the house of the complainant party, when the complainant along with her husband and son came out they noticed that accused Nizakat was armed with pistol, Ehtisham, Aamir and Rafaqat armed with Kalashnikov while Mumraiz armed with rifle. In the meanwhile accused Mumraiz ordered his co-accused to fire at the complainant. Nizakat is charged for firing at Javed which hit on his abdomen. Ehtisham is charged for firing at Mohsin Javed. Aamir and Rafaqat are also charged for firing with their Kalashnikov at deceased and at the complainant but she escaped unhurt. Mumraiz had given blow with rifle butt on her head. According to P.M report Mohsin Javed deceased had multiple fire-arm injuries on his body. In the promptly lodged F.I.R. It is clearly mentioned; {{UEDU TEXT}}
9. At present all these facts lead me to an irresistible conclusion present respondents that the respondents Nos.1 to 3 prima facie shared the community entertained with their co-accused who caused the death of husband and son of complainant. Hence they can legitimately be saddled with constructive or vicarious liability for causing double murder and on the head of the complainant by invoking the relevant injuries provision of section 34, P.P.C.
10. Learned counsel for the respondents has vehemently contended that principle of vicarious liability. Cannot be dealt with at bail stage. But his proposition is controverted by the superior Court.
Reference is made to 1981 SCM R 1092, 1978 SCMR 1416, PLD 1974 SC 236 and 1988 PCr.LJ 410. In case 1981 SCM R 1092 it was observed by the hon'ble Supreme Court as under: "We are in respectful agreement with the observation reproduced above, and consider that it is entirely erroneous to think that in the case of Muhammad Akbar and others, this Court laid down by rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at the time of considering the question of bail. The question is essentially one which has to be determined on the basis of the facts of each case available on record at the time the question of bail comes up for consideration. If on the allegation appearing on the record the condition set out in the provisions of law spelling out constructive liability, are made out then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life." ' similarly, 1988 PCr.LJ 410 at 414 it is observed as under:- "As regards the contention that no overt act is attributed to the private respondents in causing any injuries to deceased Rajab Ali, reference may be made to Munawar's case reported in 1981 sCMR 1092, referred to earlier in this order. Just because no injury is attributed to an accused, it cannot be laid down that a case for bail is made out, if on facts it is established that prima facie, section 34, P.P.C. Is attracted and the accused can apparently be saddled with constructive or vicarious responsibility 1984 sCMR 206 relied upon by learned counsel for the respondents does not lay down contrary principle. It is, therefore, to be seen in the facts and circumstances of the each case, whether the accused can, prima facie, be saddled with reasonability under section 34, P.P.C. At the bail stage for denying the concession of bail to the accused."
"In view of the aforesaid precedent cases it is now well settled that the principle of vicarious liability can be looked into at bail stage and if it is transparent from the contents of the F.I.R. That the accused had acted in pre concert or he shared the community of intention with his co- accused who caused fatal injury to the deceased, he can be saddled with constructive or vicarious liability at the bail stage by invoking section 34, P.P.C. And there is no legal bar to determine the question of his constructive/vicarious liability while deciding his bail petition.
However, there is no cavil to the proposition that this assessment shall be tentative in nature, and would not prejudice the case of the accused during the trial."
11. In the present case accused/respondents have been released on bail on the basis of further inquiry. After hearing the parties and perusal of record I am of the view that subsection (2) of section 497, Cr.P.C. Has not been properly appreciated by the learned Judge. It is settled law that the expression "further inquiry" is not to be taken lightly nor is to be entertained unnecessarily.
Reference is made to PLD 1990 sC 83. In the case of Arbab Ali v. Khamiso and others 1985 sCMR 195, it was observed by apex Court "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 subsection (1) 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."
12. All these facts speak volume about the validity and correctness of the impugned order.
However, the most pivotal question which arises at this juncture is whether this Court would be justified to cancel the to respondents Nos.1 to 3 by Court of competent jurisdiction under section 497(5), Cr.P.C.?
13. It is now well settled that considerations for the grant of bail and cancellation of bail are absolutely different. Once an accused has been released on bail his liberty cannot be interfered with lightly. However, what I have been able to gather from the celebrated judgments of the apex Court is that following are the legitimate grounds which have been recognized by the superior Courts of Pakistan for cancellation of bail:--
(i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice;
(ii) some fresh facts or material has been collected by the police during the investigation which may tend to establish or point out the guilt of the accused.
(iii) That the accused misuses his liberty by indulging in similar criminal activity;
(iv) That he interferes with the course of investigation;
(v) That he attempts to tamper with the prosecution evidence;
(vi) That he threatens the witnesses or indulges in similar activity which would hamper the smooth investigation and there is likelihood of his fleeing to other country;
(vii) That he makes himself scare by going underground or becoming unavailable to the Investigation Agency.
' These grounds are illustrative and not exhaustive. Cancellation of bail is a hard order, because it interferes with the liberty of an individual, hence, it must not be resorted to lightly. Rejection of bail when bail is applied for is one thing and cancellation of bail when granted is another, because cancellation of bail interferes with the liberty already secured by the accused either on the exercise of discretion by the Court, or by thrust of law. Hence, power to take back in custody, an accused who has been enlarged on bail is to be exercised with care and circumstances. That does not mean that power though extraordinary in character must not be exercised even if the ends of justice so demand, and in this case, it is being exercised in favour of the petitioner.
14. In the instant case, the respondents along with other co-accused had come to the spot fully determined to take the lives of their opponent. They were armed with deadly weapons. They fired at complainant party. In this occurrence complainant lost her son and husband. She had also sustained injuries in her skull. She had promptly lodged F.I.R. Wherein a total of five persons have been charged by name for commission of offence. I am therefore constrained to hold that respondents prima facie is vicariously and constructively liable for the murders of deceased Javed and Mohsin Javed and attempted at the life of complainant. The impugned order is patently illegal factually incorrect and perverse which has resulted in miscarriage of justice.
15. Consequently this petition is accepted and the order impugned dated 7-10-2013 passed by learned sessions Judge Haripur whereby respondents Nos.1 to 3 were granted bail is set aside being wrong and perverse and to respondents is hereby cancelled. They are present in Court and should be taken in to custody forthwith.
Bail cancelled.