1997 P Cr (PLP)

Malik Manzoor Ahmad Misson A.A.-G, for the State. Sardar Muhammad Hussain for the Complainant. Date of hearing: 20th July, 1995. F.I.R. No.6, dated 9-1-1995 stands registered at Police Station Saddar Rahimyar Khan under section 302/324/148/149, P.P.C. at the instance of Mian Abdul Hayee complainant with the allegation that his nephew Abdul Manam was a student of Commerce College, Rahimyar Khan who complained to him that it day before yesterday Bashir Ahmad and Tahir Mehmood students of the college quarrelled with him and belaboured him as he did not hand over his motor-cycle to them. On the previous day (8-1-1995) he went to the Principal of the college to make the complaint who was not available. On that day (9-1-1995) at 11-00 a.m. he went in his Suzuki, jeep to the college to make complaint against the students. Abdul Manam, his Bhanja Abdul Marian, his nephew Abdul Sabour and driver Munir Ahmad were with him. They alighted from the jeep. Amjad and Tahir Mehmood accused both armed with pistols. Bashir Ahmad and Muhammad Usman accused armed with Khanjars and Hassan Mehmood petitioner-accused armed with revolver arrived there and challenged them. Amjad accused fired which hit Abdul Marian. The second fire shot was given by Tahir Mehmood, which also hit Abdul Manan. Bashir Ahmad accused gave a Khanjar blow on the person of Abdul Saboor while Usman accused gave a Khanjar blow on the person of Munir Ahmad P.W. Hassan Mehmood petitioner accused fired at him (complainant) directly but he hid himself and was saved. One student standing close by was also injured. The injured persons were removed to the hospital out of whom Abdul Marian expired.

2. The case has been investigated by different Investigating Officers and the final opinion expressed by them is about the involvement of all the accused persons. The challan indictment is said to have been submitted under section 173, Cr.P.C. for trial of the accused persons. Hassan Mehmood petitioner-accused filed his application for his admission to bail which has been dismissed by the Additional Sessions Judge and he has filed this petition before this Court to try his luck to be admitted to bail.

3. I have heard the learned counsel for the parties as well as learned Assistant Advocate-General and gone through the record before me. First of all the learned counsel for the petitioner agitated the plea of alibi of Hassan Mehmood petitioner-accused who is said to be present in Karachi on 9-1-1995 at 11-00 a.m. where he was getting the religious education in a religious school. The police has thoroughly-investigated in this regard and has not accepted the plea of alibi. In this view of the matter this plea shall have to be established by the petitioner-accused during the trial as it is not proper to express as contrary view to that already expressed by the Investigating Officer.

4. Learned counsel for the petitioner argued that only ineffective firing has been attributed to Hassan Mehmood petitioner-accused and in view of the case- law in the country he is entitled to be admitted to bail whose involvement in the matter can be termed to be a question of further inquiry. My view is that the detail of occurrence and the role ascribed to the accused person(s) have to be analysed and dissected while disposing of a bail application in the peculiar circumstances of the each individual case. The admitted position is that the occurrence took place in the Commerce College, Rahimyar Khan which is an educational institution. Hassan Mehmood petitioner-accused is admittedly not a student of Commerce College Rahimyar Khan. His presence within the precincts of the said institution armed with revolver cannot be taken lightly by this Court. He accompanied his co-accused to a place where his presence cannot be expected in the ordinary routine. It is enough to prima facie connect him with the occurrence keeping in view the principle of vicarious liability provided under section 149, Cr.P.C. in the instant matter as the accused are five in number. The law and order situation is worsening in the country as in the Executive and the Judicial field such desperate accused persons are granted the discretion who believe in Klashnikov culture and do not give any weight to the lives of others. Even if some affidavit has been given by one lecturer the same cannot be dissected and granted the weight while disposing of this bail application as in view of the opinion of tile Investigating Officer this aspect of the matter can be considered during the trial. The involvement of petitioner Hassan Mehmood is not that of further inquiry as canvassed by his learned Advocate in view of the dictum enunciated in Arbab Ali v. Khamiso and others 1985 SCMR 195 referred to in Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 and relevant observation is reproduced as under:-- "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of 'further inquiry'. It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497) under subsection (2) of section 497, Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused had committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court." The weapon of offence i.e. revolver has been recovered from the possession of the petitioner. It is a daylight occurrence. There was no previous animosity between Hassan Mehmood petitioner and the complainant party. There is no dispute about the initial criminality of Hassan Mehmood petitioner. There is no doubt about his identification. The F.I.R. was promptly lodged. He was a source of strength to his co-accused and all of them wanted to show their strength in the educational institution. In the circumstances the role of ineffective firing cannot be taken lightly as the vicarious liability of Hassan Mahmood petitioner stands projected and established. In the circumstances Hassan Mehmood petitioner is prima facie liable under section 302/324/148/ 149, P.P.C. and is not entitled to be admitted to bail. For what has been said above, I dismiss this application. N.H.Q./H-157/L Bail refused