2004 PLP 1175 (SCMR)

MIAN MUHAMMAD AJMAL, J.‑‑‑Leave to appeal is sought against the judgment of the Peshawar High Court, D.I. Khan Bench dated 24‑3‑2003, whereby Criminal Miscellaneous B.C. No. 122 of 2002 of Nazir Ahmad complainant/respondent was accepted, bail granted to the petitioner was recalled and he was taken into custody.

2. Brief facts as per First Information Report are that on 29‑11‑2001 at 8‑30 a.m., Nazir Ahmad complainant and Bashir were going to the Dera Bazar on bicycles, Muhammad Salim was also going to the Dera on a bicycle ahead of them with load of milk pots. When Muhammad Salim reached near the shop of Allah Nawaz petitioner his co‑accused Sona and Qayum Nawaz armed with axes came out from the shop and started giving blows to him. Meanwhile the petitioner armed with .30 bore pistol also came out from his shop and fired at Muhammad Salim, as a result of which he fell on the ground and succumbed to the injuries. The petitioner and his co‑accused decamped from the spot. Accordingly a case under section 302/34, P.P.C. was registered against the petitioner and his two co‑accused. The petitioner applied for bail before the Judicial Magistrate Section 30, D.I. Khan; who vide his order, dated 7‑3‑2002 dismissed the same observing that the petitioner was directly charged for firing upon the deceased which fact was corroborated by recovery of blood‑stained live cartridge of .30 bore pistol from the place of occurrence and the recovery of Chadar of the deceased which had marks of fire shots on it. The petitioner then applied for bail before the Sessions Judge, D.I. Khan, who vide his order, dated 8‑4‑2002 allowed the same as under:‑‑ "In the circumstances when the injury on the person of the deceased is with sharp weapon and again the petitioner has been shown to be armed with fire‑arm, there is wide scope of further inquiry into the guilt of the petitioner and hence, I, by allowing the petition, admit the petitioner to bail on furnishing bail bonds in the sum of Rs.1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Judicial Magistrate, D. I. Khan. Order accordingly." Against the said order complainant/respondent No.2 filed Criminal Miscellaneous Bail Cancellation No. 122 of 2002 which has been accepted by a learned Judge in Chambers of the Peshawar High Court, D.I. Khan Bench vide his judgment, dated 24‑3‑2002, impugned herein, as stated in para. 1 above.

3. We have heard the learned counsel for the petitioner, learned Advocate‑General for the State and have gone through the record of the case. The petitioner was granted bail by the learned Sessions Judge, D.I. Khan which was cancelled by the High Court with the following reasons:

"After going through the record, hearing the arguments of the learned counsel for the parties, I am of the view that there is a prima facie case against the accused respondent showing his involvement in the murder of the deceased. No matter, if the deceased had not received any injury with the fire shots of the accused‑respondent, he cannot escape the vicarious liability of section 34, P.P.C.". The reason which weighed with the learned Judge in Chambers of the High Court for cancellation of bail was that the petitioner was vicariously liable for the offence which prima facie was a ground for further inquiry into his guilt. The considerations for the grant of bail and cancellation thereof are different. Section 497(1), Cr.P.C. lays prohibition for the grant of bail for offences entailing punishment of death or imprisonment for life or imprisonment for ten years whereas subsection (5) of the said section has not imposed any such conditionality for canceling the bail and any bail granting order which appears to be injudicious or perverse to the High Court or the Court of Session, as the case may be, can be recalled by it. In the instant case, the learned Sessions Judge while allowing bail to the petitioner had taken into consideration the material available before him and he exercised his discretionary powers under section 497(1), Cr.P.C. in favour of the petitioner which do not seem to be perverse or arbitrary, therefore, no l exception could be taken to such a discretionary order.

4. This petition was converted into appeal and allowed and the petitioner was admitted to bail vide our short order, dated 7‑5‑2004. The above are the reasons in support of the said short order. N.H.Q./A‑54/S Bail allowed.