1987 PLP 857 (SCMR)

Date of hearing: 7th January, 1987. SHAFIUR RAHMAN, J.‑‑Ghulam Ali, the petitioner, an uncle of the two deceased Ghulam Abbas and Khalid, seeks leave to appeal against the judgment of the Lahore High Court dated 29‑9‑1986 whereby the two respondents were admitted to bail in a case registered against them and their uncle under section 302/34, P.P. C.

2. On the 17th of June, 1986 at about 5‑30‑ p.m. the two deceased were at their house in their Baithak and Ghulam Abbas was having his hair dressed. Muhammad Yousaf respondent passed in front of the Baithak playing his tape‑recorder at a high pitch and the deceased considering that the songs so played were obscene prohibited him from doing so as it was the residential house of the deceased. Muhammad Yousaf respondent felt greatly hurt over it. He threw the tape‑recorder there, threatened him with dire consequences and rushed to his house and brought with him his brother Muhammad Bakhsh respondent and their uncle Shangal who did not apply for bail. It was Shangal who was armed with a .12 bore gun. The two respondents grappled with Ghulam Abbas but their uncle Shangal asked them to move away and immediately fired not only at Ghulam Abbas but also at Khalid and both died of the injuries.

3. The Additional Sessions Judge denied the respondents the benefit of bail holding that "at this stage it cannot be permitted to say that they did not share the common intention". The learned Judge of the High Court allowed them the bail holding as follows:‑-- "Admittedly, the two petitioners came to the spot empty handed. Neither they exhorted Shangal (principal accused) to fire at the deceased persons nor they held the deceased when Shangal fired fatal shots on them, therefore, even if petitioners' presence is admitted at the relevant time it would require further enquiry whether the petitioner shared common intention with their co‑accused Shangal for committing murder of Ghulam Abbas and Khalid. "

4. Mr. Asif Saeed Khan Khosa, the learned counsel for the petitioner has taken two grounds for seeking leave to appeal. The first is that on merits the implication of the two respondents was established to be such as not to entitle them to the benefit of bail for there was nothing to be enquired into further with regard to their complicity. The other ground taken up is purely legal as according to the learned counsel for the petitioner, the learned Judge of the High Court who passed the impugned order lacked the basic competence to do so. The foundation for such a ground has been laid down by pleading that rule 7 read with rule 11 of the Lahore High Court (Establishment of Benches) Rules, 1981 (hereinafter referred to as the Rules) whereunder the learned Judge was authorised to act and function was itself ultra vires the Constitutional Provision Article 198, clause (5). The sum and substance of the contention of the learned counsel for the petitioner is that under aforesaid clause (5) only those Judges who are nominated on a Bench of the High Court for a period of not less than one year can function on that Bench. Admittedly, the nomination of the learned Judge who passed the impugned order was for only a week commencing from 27‑9‑1986. In support of such an interpretation of a constitutional provision, the learned counsel for the petitioner has taken us through the developments and the background in which the various Benches of the High Court were established and started functioning.

5. As regards the merits of the submission in so far as it concerns the facts of the case, we find that the learned Judge in the impugned order has taken note of all the relevant facts, namely, that the two respondents were unarmed, that they did not by exhortation or otherwise invite firing on the deceased and also that immediately on arriving they grappled with one of the deceased and had to be separated by those present there before the deceased were fired at. On these facts, the learned Judge has taken a view which cannot by any standard of appreciation of material before the Court be said to be either perverse or entirely wrong. A discretion possessed has been exercised and it does not call for our interference or even for further examination.

6. The legal contention of the learned counsel for the petitioner omits to take note of clause (2) of Article 198 permitting the Judges to sit as Judges even at the seat of its Benches. This Article supplements the provisions contained in clauses (3) and (5) of Article 198 in so far as Benches are to be established and Judges to be appointed thereto for a period of not less than one year. Rule 7 of the Rules has its foundation in clause (2) of Article 198 in so far as it authorizes Chief Justice at any time whenever he finds it expedient for the efficient functioning of the Principal seat, the Benches or the Circuit Courts to require any Judge to sit for such period as may be determined by him at any Bench, Circuit Court or at the Principal seat. It is not the case of the learned counsel for the petitioner that at the time when the powers possessed under Rule 7 were exercised there was no Bench at all constituted in terms of clause (5) of Article 198 at Multan. Even if that be so, there may be non‑compliance with provision of clause (5) of Article 198 but that would not in any manner affect or under the operation of the clause (2) of Article 198, and rules referable. We find no merit in the petition and leave to appeal is refused. M.I/G‑13/S. Petition dismissed