This order will dispose of two applications namely Criminal Misc. No. 1840/B-75 and Criminal Misc.
2156/8-75 filed by Chuni Lal petitioner under section 497(5), Cr. P. C. For the cancellation of bail of Dittoo and Boota (respondents in Cr. Misc. No. 1840/8-75), Mangta and Siddiq (respondents in Cr.
Misc. No. 2156/8-75) granted to them by the learned Sessions Judge, Lahore vide his orders dated 25-4-1975 and 7-5-1975. Respectively. The learned Sessions Judge while rejecting the application of the petitioner for cancellation of bail of Dittoo respondent, granted bail to Boota respondent on the ground that his case was at par with the case of Dittoo respondent. Same was the case of Mangta and Siddiq respondents.
2. The brief facts of the case are as follows :- A case under section 302/307/148/149, P. P. C. Was registered at the instance of Chuni Lai petitioner with Police Station, Misri Shah on 3-7-1974 at 6-00 p.m. The occurrence took place at 5.30 p.m. In Neewan Mohallah Chah Miran within the jurisdiction of Police Station Misri Shah. It seems the matter was reported promptly within half an hour of the occurrence. Chuni Lai petitioner told the police that 15/16 years prior to this occurrence Dittoo and Boota respondents migrated from Police Station Manawan and came to the present village (the venue of this occurrence). It was stated by the petitioner that Dittoo etc. Were spies, smugglers, dealers in narcotics and desperados who were also in habit of teasing the women-folk. It was also asserted that they were convicts in a murder case and were out to create trouble and threatened with dire consequences whosoever came in the way of their nefarious activities. According to this F. I. R. There was a joint graveyard for the Christian population but it was being used by the respondents to tether their cattle against all canons of sanctity. Despite the forbiddings of the complainant the respondents never desisted in repeating their action. For this reason many a time altercations took place between the parties which led to abusive language and small clashes. By his persistence Chuni Lai petitioner became the object of their wrath and many a time he was beaten by them. On the fateful day Siddiq respondent started fixing pegs in the graveyard in order to tether the cattle. Chuni Lai petitioner again went and asked him not to do so as it was a joint village graveyard and was meant for that purpose only. Siddiq respondent got flared up and started abusing Chuni Lal. He raised lalkara to secure help and in response of his war cry Dittoo, Wazir, Mangta and Boota came armed with daggers. They made a con--certed attack on Chuni Lai petitioner but due to intervention of Sharif, Hanif, Wazir alias Gugi and Gora, all Christians, the petitioner momentarily escaped the consequences. Despite their beseachment they once again opened attack at which the petitioner along with his companions ran to save their lives. The respondents started hurling brick-bats at them and chased them and ultimately surrounded them. Taking advantage of this situation Wazir inflicted a dagger blow on Sharif which fell on the left side of his chest and felled him on the ground. He died at the spot. During this attack Gora, Wazir alias Gugi also received injuries.
3. I have heard the learned counsel for the petitioner, the State as well as the respondents. The learned counsel for the State has supported the petitions for cancellation of bail filed by the petitioner. The learned Sessions Judge was pleased to grant bail to all the respondents and refused to cancel their bail when Chuni Lai petitioner moved for cancellation of the same. The learned Sessions Judge while taking into consideration all the pros and cons of the case and poking into the cases of Abdus Salam v. State 1970 P Cr. L J 1306, Muhammad Yaqub v. State 1971 P Cr. L J 106, Sakhi Muhammad v. State 1973 P Cr. L J 397, Farman Ali v. State 1973 P Cr. L J 217 and Farooq Ahmad v. Ghulam Shabbir 1968 SCMR 74 placed reliance on Allah Ditta v. State 1972 P Cr. L J 427 and was persuaded to hold that :- "Nothing substantial was urged on behalf of the complainant to dislodge the view that in the peculiar circumstances of the case, the question of degree of culpability of the accused who had not actually caused injuries to the deceased although they were armed with daggers, calls for further inquiry."
Before recording my finding regarding the legality or propriety of this order, it will be advantageous to quote sections 141 and 149, P. P. C., so as to appreciate its language and impact. Section 141, P. P.
C. Defines unlawful assembly as under:- "141. Unlawful assembly.-An assembly of five or more persons is designated an "unlawful assembly," if the common object of the persons composing that assembly is First.-To over-awe by criminal force, or show of criminal force (the Central or any Provincial Government or Legislature), or any public servant in the exercise of the lawful power of such public servant; or Second.-To resist the execution of any law, or of any legal process; or Third.-To commit any mischief or criminal trespass, or other offence, or Fourth.-By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.
Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
(Note.-The underlining* is mine). Section 149, P. P. C. Lays down that :- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
In Feroz and others v. The State PLD 1956 Lah. 854 a Division Bench of this Court while pointing out the difference between sections 34 and 149, P. P. C., held:- "The law looks with disfavour at unlawful assemblies and it is, therefore. Provided by the second part of section 149 of the P. P. C. That even if the offence committed by any member of the unlawful assembly was not committed in furtherance of the common object of that assembly, every one of the members of the unlawful assembly would be liable for the offence if the result was such as was known to be likely."
The learned Judges of this Court in fact followed the earlier view as pro--pounded in Nawab and others v. The Crown PLD 1954 Lah. 78 and came to the conclusion that even if at the worst the common object of the unlawful assembly was to give beating to the members of the opposite- party, so as to teach them a lesson but if at the same time these members of unlawful assembly were armed with sharp-edged cutting weapons like Kulharis then if they were held responsible for the murder committed by any one of them, as they should have known that under the circumstances the death was likely to take place, the deal meted out to them could not be called unfair. The learned Judges accepted the appeal of the Provincial Government and altered the conviction of the appellants from section 326/149, P. P. C. To that under section 302/149, P. P. C. And further observed that they would have no compunction in sentencing each of the five appellants to death, but as offence was committed a few years earlier, therefore they did not impose the maximum penalty as provided for this offence under the law. This was the view taken by this Court at the stage of appeal after the conviction but as far as application of section 149, Part 2 is concerned, this is the law as it stands uptill now.
4. While adverting to application of section 149, Part 2 in the cases of those persons who though attributed no specific roles but being members of unlawful assemblies either armed with deadly .
Weapon or even empty --handed, I will quote a passage from Amir Hussain v. State 1971 P Cr. L J 297 a Division Bench judgment of Karachi High Court which will be helpful to resolve this controversy. It was held by the learned Judges :- "It was further argued by the learned counsel for the appellants that at least the appellants who had no weapon could not be associated with this assault. This argument is equally devoid of force.
All the appellants had pounced upon the deceased and it is no wonder that although some of them had no weapon yet they may have surrounded the deceased in order to facilitate the attack on him by the persons who were armed with weapons. They were members of the unlawful assembly and when anything is done to prosecution of the common object of the assembly all are equally guilty whether they actually assaulted or stood by to render any assistance that may be needed."
This will clearly show that earlier view in the cases of Nawab and others and Feroz and others was followed uptill 1971 without any deviation on the main principles envisaged by this section. The law as it stands has to be applied to the facts of each case which are placed before the Court. The facts may be different but the law will be the same.
5. Now dealing with the application of section 149, P. P. C. In bail matters, I will rely on Muhammad Saeed Khan v. Abdul Ghafoor PLD 1966 Lah. 86 wherein Mr. Justice Muhammad Gul (as his Lordship then was and now in the Supreme Court), after considering Gulzaruddln Ahmad v. State PLD 1965 Dacca 425 and Emperor v. Abhalraj Kunwar AIR 1940 Oudh 8 came to the finding that in non-bailable matters the discretion was to be exercised with care and 'circumspection. Where the offence was under section 302/149, P. P. C. Each accused was vicariously liable for capital crime, even if the fatal injury was attributed only to one of the accused. His Lordship observed as follows :- "It is not possible to say at this stage, that there are no reasonable grounds for believing that the for respondents are not guilty of a capital crime. They are named in the F. I. R. Which was recorded at the instance of the deceased and is therefore, substantive evidence in the case. There are also for eye-witnesses of the occurrence, whose evidence is yet to be recorded. Therefore, ex facie, there are no exceptional circumstances operating in favour of the respondents to entitle them to bail at such an early stage."
It was further observed by this learned Judge that there was nothing to show that while granting bail the learned Sessions Judge exercised discretion on sound principles with due care. It was also observed that the learned Sessions Judge did not bear in mind the limitation imposed by subsection (1) of section 497 of the Code of Criminal Procedure, 1898 for grant of bail in a capital case. Before I conclude my own finding in the present case, I will also refer to Fazal Hussain and 4 others v. The State 1975 P Cr. L J 161. His Lordship in Single Bench after reference to a number of authorities from both sides came to finding as under :- "I have considered the contention of the learned counsel for the petitioners. The version given in the F. I. R. Is yet to be tested on solemn affirmation and would also undergo the test of cross--- examination. To determine the question of vicarious liability at this stage is likely to prejudice the case of either side."
The learned Judge dismissed the bail petition. At this stage I have also taken into consideration the following authorities cited by the learned counsel for the respondents : -
(1) Muhammad Yaqoob v. Ghulam Qadir 1973 SCMR 498.
(2) Muhammad Yaqoob v. State 1971 P Cr. L J 106.
(3) Mahboob etc. v. State 1974 P Cr. L J 102. and have perused with respect 1972 P Cr. L J 427 a Single Bench ruling by this Court. The authorities cited by the learned counsel for the respondents spell out altogether different facts and thus do not advance the case of the respondents. In the above ruling the possibility of false implication due to long standing enmity was the main factor which weighed with the mind of the learned Judge, therefore, in view of the settled law on section 149, P. P. C. As discussed in the earlier part of my order, I am afraid this authority could not be advanced as support to otherwise erroneous view of the learned Sessions Judge. Therefore, I am of the considered opinion that in the present case the learned Sessions Judge by granting bail to the respondents has in fact prejudiced the matter of vicarious liability raised by the prosecution.
6. What I find in the present case is that so far there is only version of the F.
1. R. On the record which is duly supported by the injured witnesses. These witnesses and the maker of the F. I. R. Are yet to be examined. According to the witnesses, respondents with the exception of Siddiq were all armed with daggers. Siddiq too, who was fixing the pegs cannot be deemed as empty-handed as he must be equipped with some instrument to fix the pegs in the graveyard. It is also the case of the prosecution that respondents were members of an unlawful assembly and chased and surrounded the victim, who ultimately was stabbed by Wazir accused and thus died. There is also mention of the past of the respondents, who have been dubbed as smugglers, murderers and persons of highly desperate type. All those matters will be considered by the Court of Inquiry and ultimately by the trial Court. Therefore, it would be too early to determine the liability of the respondents one way or the other.
7. In the light of the above discussion I accept both the applications filed by Chuni Lal petitioner and cancel the bail of the respondents namely Dittoo, Boota, Mangta and Siddiq, granted to them by the learned Sessions Judge, Lahore. They will be taken into custody forthwith.
8. I would like to make it clear that this order would not prejudice the case of the respondents for applying bail in future after the recording of material evidence before the Court of Inquiry.