2000 PLP 1854 (SCMR)

CH. MUHAMMAD ARIF, J.

Fateh Khan father of petitioner Farzand Ali was the first informant of a case under section 302/337/34, P.P.C. registered at Police Station Jand, District Attock vide F.I.R. No.96 of 1997, dated 12th July, 1997 regarding an occurrence of the same date having taken place at 6-30 a.m. in which he and his son the present petitioner had sustained injuries on their persons. It was after his demise that section 302, P.P.C. was added to F.I.R. No.96 of 1997. 2: In addition to respondents Nos. l and 2 namely, Taj and Ameer sons of Hadayat Khan, two others namely Ghulam Raza son of Sultan and Sajjad Raza son of Ghulam Raza were the accused in the case at the instance of deceased Fateh Khan. After the arrest of the accused, all of them unsuccessfully applied for bail before the Court of Session. On a further move by the said accused before the Lahore High Court, Rawalpindi Bench, Rawalpindi only Sajjad Raza (Sajjad Khan) accused was admitted to bail, while others were declined the concession with the following observations:-- "As regards other three petitioners, it is not a stage to distinguish the specific injury caused by each of them which had ultimately culminated into death of Fateh Khan, complainant. The petitioners who caused injuries to him were armed with Sotis but this fact prima facie proves that the complainant was given a merciless beating even with Sotis resulting into his death. Hence, at this stage it will not be expedient to separately take up the case of Taj and Ameer petitioners to hold that the injuries caused by them did not result into death of Fateh Khan deceased in particular when they are also charged for causing injuries to the son of Fateh Khan and would also be liable under the principle of vicarious responsibility. The case of these petitioners falls within the prohibitory clause of section 497, Cr.P.C., and thus they are not entitled to bail at this stage. " Respondents Taj and Ameer remained unsuccessful in obtaining concession of bail from the learned Additional Sessions Judge and thereafter claimed bail from the High Court through Criminal Miscellaneous No.728-B of 1998 which was allowed by a learned Single Judge vide judgment, dated 6-9-1998. Petitioner Farzand Ali has challenged the grant of bail to respondents Nos. l and 2 by the High Court on 6-9-1998 in this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.

3. We have heard Mr. Sh. Zameer Ahmed, learned Advocate Supreme Court appearing in support of this petition and have also perused the material on the record with his help. He was critical of the impugned judgment with the argument that the learned Judge in Chambers of the Lahore High Court fell into an error in relying upon Muhammad Akbar and 4 others v. The State and another (1978 SCMR 7) for the proposition that as the petitioner had not caused any injury to deceased Fateh Khan but only to petitioner Farand Ali, therefore, the case of the latter was distinguishable from the former. He referred to Nazar Muhammad v. The State and another (PLD 1978 SC 236) to contend that the author Judge of the case of Muhammad Akbar (supra) was the author Judge of Nazar Muhammad (supra) as well and that in the latter precedent, the earlier precedent was distinguished by holding that those accused who had not caused injuries to the deceased but only to the injured P.W. would be vacariously responsible for major offences and. their case covered by section 497(1), Cr.P.C.

4. We find that the learned Judge in Chambers proceeded with resolving this lis before him by not making a reference to Muhammad Akbar (supra). In fact this precedent was pressed into service by the then learned counsel appearing on behalf of the private-respondents herein, in their capacity as petitioners in Criminal Miscellaneous No.728-B of 1998. Further, a careful perusal of both the precedents shows that the case of the private-respondents was distinguishable and the learned Judge in Chambers had granted bail to the private-respondents by observing that earlier order of the High Court refusing the concession of bail to the private-respondents herein does not stand in their way to seek concession of bail in that the second application before the learned Additional Sessions Judge, Attock was competently made and that the respondents were incorrectly mentioned to have given "... merciless beating to Fateh Khan deceased. The only allegation against the present petitioners is that they had caused injuries to Farzand Ali the son of the deceased when he tried to rescue him from the hands of Ghulam Raza co-accused. There is also no denial that the injuries suffered by Farzand Ali were simple in nature. Prima facie when the petitioners did not make any attempt to cause any injury to the deceased, their role of causing simple injuries to Farzand Ali became distinguishable that they did not intend to cause any injury to the complainant . ...". These observations when read in conjunction with the observations in Nazar Muhammad (supra) dealing with causing injuries to a P.W. by making fire with a gun, are distinguishable to the core. It is not denied on behalf of the petitioner that the respondents had only 'Sotis' with them and did not cause any injury to Fateh Khan deceased and only simple injuries were caused by them to petitioner Farzand Ali. Exercise of discretionary jurisdiction by the A High Court in the matter of grant of concession of bail to the private?respondents herein through the impugned judgment has not been shown to be suffering from any inaccuracy to lead to interference by this Court in these proceedings. ??????????? 5.???????? In this view of the matter, the instant petition is dismissed and leave refused. Q.M.H./M.A.K./F-12/S ????????? Petition dismissed.