Khuda Bakhsh petitioner is the complainant in case F.
1. R. No, 151/81 registered under section 302/148/149, P. P. C., at Police Station Lodhran. He has filed the present petition for cancellation of bail of Aftab Hussain, Allah Ditta and Khadim Hussain who alongwith Shabbir Shah, Saeed Ahmed alias Sheedu, Shah Muhammad alias ,Shahoo and Aziz have been named as accused in the aforementioned F. I. R. Aftab Hussain respondent No, 1 was, admitted to bail by the learned Sessions Judge, Multan vide his order dated 8th July, 1981 while Allah Ditta and Khadim Hussain respondents Nos. 2 and 3 respectively were allowed bail on 18th August, 1981. The petitioner has contended that respondents Nos. 1 to 3 and their co-accused had formed an unlawful assembly and they were hiding behind a bush before they attacked Ashiq Muhammad deceased and injured Ghulam Muhammad P. W. Aftab Hussain respondent No, 1 had given a lathi blow on the back of the head of Ashiq Muhammad deceased after he had fallen down as result of gunshot. Fired at him by Shabbir Shah accused. Allah Ditta and Khadim Hussain respondents had caused injuries to Ghulam Muhammad P. W. According to the petitioner, none of the aforementioned respondents was entitled to be released on bail in view of the specific allegations made against them. The petitioner has also taken exception to the observation made by the learned Sessions Judge while allowing bail to Aftab Hussain respondent No, 1 that the injury on the head of the deceased attributed to him could be the result of fall as Ashiq Muhammad deceased had fallen on the ground after being injured by the gunshot fired at him by Shabbir Shah accused. The petitioner has contended that the above observation made by the learned Sessions Judge is likely to prejudice the prosecution case and there was no basis for making such remarks in view of the specific allegation made in the F.
1. R. And supported by the eye-witnesses in their statements recorded under section 161, Cr. P. C. The petitioner has also stated that the respondents have misused the concession of bail as they have threatened the prosecution witnesses for which reports have been made to the Police.
2. Notices were issued to respondents Nos. 1 to 3 as well as to the State. Learned counsel who has appeared on behalf of the State has stated that he would not support the petitioner's prayer for cancellation of bail in so far as Aftab Hussain respondent No, 1 is concerned.
3. Learned counsel for the petitioner has argued that the fact that the respondents and their co- accused were hiding behind bushes before they launched the attack on Ashiq Muhammad deceased and caused injuries to Ghulam Muhammad P. W. Clearly shows that they had formed an unlawful assembly and had acted in prosecution of the common object of the said unlawful assembly. The respondents are, therefore, vicariously liable for the murder of Ashiq Muhammad. In support of his above arguments, he has relied on Nazar Muhammad v. The State and another in which, case also they ambushed before they attacked the deceased and the prosecution witnesses. Nazar, Muhammad, one of the accused who was armed with a gun and had injured Sadaqqat Ijaz P. W., was not allowed bail and it was observed that once it was accepted that he was a member of the unlawful assembly so he shared the common intention with those who had allegedly caused the death of Rifaqqat Iftikhar. It was wholly immaterial that Sadaqqat Ijaz P. W.
Had sustained a simple injury. Prima facie, the petitioner was vicariously responsible for the major offence. Learned counsel for the petitioner has further contended that Aftab Hussain respondent had given a stick blow on the back of the head of Ashiq Muhammad deceased, The fact that the injury caused by him Was not fatal is immaterial. He was not entitled to be released on bail and his case was distinguishable from the other respondents against whom the allegation was that they had caused injuries to Ghulam Muhammad P. W. According to the learned counsel for the petitioner sifting of evidence, while considering the question of bail to the accused is generally avoided by the Court as any observation made at that stage is likely to prejudice the parties at The trial. The manner in which the learned Sessions Judge had tried to explain the injury on the back of the head of Ashiq Muhammad deceased in the present case is wholly unwarranted.
4. Learned counsel for Aftab Hussain respondent has supported the order of the learned Sessions Judge allowing bail to the respondents on the ground that the respondent was not present at the time of occurrence, that he has been falsely implicated in the case and that even the motive alleged by prosecution against him was not so strong which would have led him to join the other accused in committing the murder of Ashiq Muhammad. According to the learned counsel, the injury allegedly attributed to the respondent was not caused by him and that the learned Sessions Judge was justified in expressing the view that he had sustained it when he had fallen on the ground. Referring to the observations made in Nazar Muhammad v. The State and another cited by the learned counsel for the petitioner it was pointed out by the learned counsel for the respondent that every case of criminal nature proceeds on its own facts and , circumstances and a rule of universal application cannot be deduced from the decision of a particular case. The application of the rule of vicarious liability as stated in the aforementioned case, is not applicable to the facts of the present case. The learned counsel for the respondent has referred to the decision in the case of Ghulam Rasool v. The State where bail granted to the accused who had caused only simple injuries to the deceased by the High Court was not interfered with.
5. Learned counsel for Allah Ditta and Khadim Hussain respondents Nos. 2 and 3 has stated that the case of respondents Nos. 2 and 3 is distinguishable from respondent No, 1 inasmuch as they had not caused any injury to Ashiq Muhammad deceased nor they had caused injury on any vital part of body of Muhammad Hussain P. W. They had no motive against the deceased or the complainant party. The allegation made by the petitioners that they had threatened the prosecution witnesses is also baseless. In fact, the complainant party in this case had threatened the respondents after1 2 they were released on bail and that the local Police have proceeded against them under section 10/151, Cr. P. C.
6. I have carefully considered the arguments of the parties counsel. It is a well-settled proposition of law that every criminal case proceeds , and is to be decided on its own facts as has been observed by the Supreme Court in Nazar Muhammad's case referred to above. The learned Sessions Judge has not deemed it proper to apply the rule of vicarious liability in the case of the respondents for the reason that injury to Ashiq Muhammad deceased attributed to respondent No, I could have been sustained by him while falling on the ground. It may be noticed that respondent No, 1 had specifically stated in his application for bail that the head injury of the deceased attributed to him could be the result of a fall, and that it could not be caused by a soti as alleged by the complainant. The learned Sessions Judge after examining the above contention of the respondent had made observation that the possibility of the injury having been sustained by the deceased in the manner stated by the respondent could not be ruled out. This observation was meant only for the purpose of the disposal of the respondent's application for bail. It would not be proper to consider the above observation affecting the merits of the case because the trial Judge would be free to form his independent view in the matter after considering the evidence and the material which would be placed before him at the trial. Apart from the aforementioned reason on account of which the rule of vicarious liability was not applied against the respondents by the learned Sessions Judge, there is another important aspect of the case which would justify the view taken by the learned Sessions Judge. Ashiq Muhammad deceased was fired at by Shabbir Shah on the thigh i. e. Lower part of the body. According to the post-mortem report, there were eight holes on the lower part of the front of the shirt of Ashiq Muhammad deceased while there were seven holes on the back of shirt on the lower part. No hole, however, was found on the chaddarlioin cloth of the deceased. According to the prosecution version, as given in F. I. R., Ashiq Muhammad was going alongwith the complainant whe i.e accused suddenly emerged out from behind the bushes and challenged Ashiq Muhammad. The chaddarlloin cloth was on his person when he was allegedly fired at by Shabbir Shah. As noticed above, no hole was found on the chaddarlloin cloth by the Medical Officer who conducted the postmortem examination, learned counsel for the petitioner has stated that the absence of holes on the chaddar is a material which requires examination. So far the Investigating Officer has not taken notice of it.
6. The case of Allah Ditta and Khadim Hussain respondents stands on a stronger footing than Aftab Huasain's case. Admittedly, they did not cause any injury to Ashiq Muhammad deceased. No motive has been alleged against them in the F. I. R., for joining the other accused in committing the murder of Ashiq Muhammad. The Court is not precluded from examining the liability of each accused for the purposes of bail even in a case where they had formed an unlawful assembly and the prosecution has invoked the application of the provisions of section 149, D. P. C. Reference in this connection may be made to the case of Haq Nawaz v. Llyas and Sultan and another v. The State which were referred in in Mehr Din v. Nazar Hussain and others in which case also a prayer for cancellation of bail allowed to an accused who had caused simple injury to the prosecution witness, was made but was disallowed.
7. Petitioner's allegation that the respondents have threatened the prosecution witnesses after being released on bail is vehemently controverted by the respondents and in support thereof they have sworn affidavits. The fact that certain persons belonging to the complainant party including the petitioner, have been bound down under section 107, Cr. P. C. For keeping place at the instance of the Police because they had threatened the respondents after their release on bail, supports the respondents' contention that they have not threatened or intimidated any prosecution witnesses as alleged by the petitioner.3 4 5
8. For the foregoing reasons, there is no merit in the present petition for cancellation of bail and the same is hereby dismissed. PLD 1978 SC 236 1982 SCM R 440 1977 P Cr. L J 1113 1978 P Cr. L 1194 1980 p Cr. L J 1067