Muhammad Aslam and his two sons Iftikhar Ahmad and Rizwan Ahmad, who are involved in a case under section 302/307/34, P.P.C. Arising out of F.I.R. No.128, dated 7-10-1990, registered at Police Station Dhullewala, seek to, be admitted to pre-arrest bail. Vide this Court's order dated 6-2-1991, they were admitted to ad interim pre-arrest bail. Today, the case is fixed for confirmation or otherwise of the aforesaid interim bail.
2. ' According to the allegations, Muhammad Aslam petitioner is said to have fired at Suleman with his revolver on the instigation of Iftikhar Ahmad petitioner. The shot ultimately proved fatal. Iftikhar and Rizwan petitioners, who were armed with Wholes caused injuries on the left armpit and the right wrist of Muhammad Rafiq complainant respectively. The injury on the wrist was declared grievous whereas the injury on the armpit was declared simple.
3. Learned counsel for Muhammad Aslam petitioner contends that he was in possession of the disputed land and had procured a stay order with respect to his possession, which remained effective from 29-7-1990 to 29-7-1990. He further contended that Muhammad Siddique father of Muhammad Aslam petitioner received an injury on the head and he was admitted in the hospital; fearing danger to his life and that of his sons, Muhammad Aslam used his licensed revolver and caused a solitary injury to the deceased, hence the case against him fairly and squarely falls within the ambit of section 304, P.P.C. And the police also initially riled the challan in the Court under that section. The petitioner was arrested on 12-10-1990 and was allowed bail by the Judicial Magistrate on 20-11-19W, as the offence at that time fell under section 304, P.P.C. In view of the finding of the police that the complainant party was the aggressor and petitioner used the fire-arm in the right of his self-defence and that of his sons. He has placed reliance on 1972 SCMR 082 and 1978 SC M R 231 to contend that if an accused causes the death of a person in the right of self-defence, then he is entitled to bail.
4. Learned counsel for petitioners Nos.2 and 3 submitted that they are minors and the occurrence took place all of a sudden as is mentioned in the initial report submitted under section 304, P.P.C.
Hence they cannot be held responsible for the act of Muhammad Aslam under the application of principle of vicarious liability and they would be liable only for their individual acts, as they have caused blunt weapon injuries on the complainant, hence the case against them at the most falls under section 325, P.P.C. Which does not fail within the prohibitory clause and as such they arc entitled to bail, specially when they remained behind the bars from 12-1t)-1991) till ''0-11-1990, when they were released by the Judicial Magistrate. Placed reliance on 1970 SCMR 30 and 1979 SCMR 109 to contend that minority is
5. Learned counsel for the State, assisted by the learned counsel for the complainant and the Police Officer, submitted that there is no tangible evidence in support of the assertion that Muhammad Siddique, father of Muhammad Aslam received any bullet injury at the hands of the complainant party. The only document on which reliance has been placed, i.e. a copy of Bed Head Ticket, by itself seems to be fabricated one, as neither any injury statement was prepared by the doctor nor any complaint was riled by the accused party against the complainant party. Over and above, this, nowhere in the application submitted to the S.P. Bhakkar, they have mentioned the name of the person who allegedly caused the injury to Muhammad Siddique, father of petitioner No.1, which could have given some support to the defence version. He further submitted that the challan has now been submitted under section 302, P.P.C. And the finding given by the former Police Officer on 29-10-199(1, has been upset by the S.P. Crimes Branch, vide Zimni No.15, dated 4-12-1990. So, at present the case against the petitioners is under section 302, P.P.C. And petitioners Nos.2 and 3 being the sons of petitioner No.1, had the common intention to commit the murder, hence they are vicariously liable for the act of their father. The case against the petitioners falls within the prohibitory clause and they are not entitled to bail.
6. After hearing the learned counsel for the parties and perusing the record, I find substantial force in the submissions of the learned counsel for the State so far as the part attributed to Muhammad Aslam petitioner is concerned. Admittedly he caused the fatal injury to Suleman deceased and at this stage, this Court cannot go into deeper appreciation of evidence, whether the lower Court actually granted stay order with respect to the property in dispute or not, as there is no Revenue Record available on this point, hence prima facie, no case for grant A of bail to Muhammad Aslam petitioner is made out. Accordingly, I recall my order, dated 6-2-1991, whereby he was admitted to bail. The Police Officer has been directed to take him into custody and lodge him in jail as under- trial prisoner in the aforesaid case.
7. As there is evidence to the effect that the occurrence took place all of a sudden on account of some dispute over the land mentioned in the F.I.R. Hence the principle of vicarious liability, tentatively, would not be applicable to tile facts and circumstances of this case. Petitioners Nos.2 and 3 are admittedly minors. They caused injuries to the complainant. The offence committed by them does not fall within the prohibitory clause, hence the ad interim pre-arrest bail allowed to them is hereby confirmed.