1987 P Cr (PLP)

4. The determination of all the issues would necessitate to take into account the various judgments of the Supreme Court of Pakistan dealing with all these issues. Taking up the concept of vicarious liability, in such like cases, I would first refer to the judgment of the Supreme Court reported as Muhammad Akbar v. The State 1978 S C M R

7. In the aforesaid judgment a distinction was made between the persons who had caused injuries to the deceased and those who had not caused any injury to the deceased and accordingly the persons who had not touched the deceased were allowed bail. This case was considered by the Supreme Court of Pakistan in the case reported as Munawar v. The State 1981 S C M R 1092 and the August Court observed as under:

"It is entirely erroneous to think that Supreme Court in 1978 SCMR 8, laid down any rule to the effect that a person who does not cause injuries to deceased cannot be burdened with constructive liability under section 34 or 149, P.P.C. at time of" considering question of bail. Question is essentially one which has to be determined on basis of facts of each case available on record at time question of bail comes up for consideration. If on allegations appearing on record conditions set out in sections 4 and 149, P.P.C. are made out then it cannot be said that accused concerned is not guilty of an offence punishable with death or imprisonment for life." Similarly the question was again dealt with by the Supreme Court of Pakistan in the case reported as Babu v. The State 1981 S C M R 849 and it was observed as under:

"As the allegation against the petitioner is that he has joined the unlawful assembly by arming himself with a gun, it is immaterial whether the fatal shot is attributed to him or not." The same view was taken by the Supreme Court of Pakistan in the case reported as Munawar v. The State 1981 S C M R 1092, and it was observed as under:

"Although the Investigating Officer is said of have found the respondent innocent yet his name yeas not shown in column No.2 but in column No.3 as a regular accused. No benefit can, therefore, accrue to the respondent on the basis of the opinion formed by the Investigating Officer during the investigation." The same view was upheld by the Supreme Court of Pakistan in the case reported as Mst. Fazeelat Bibi v . Karam Khan 1986 S C M R 1628. The learned Additional Sessions Judge, while admitting the respondent to pre-arrest bail placed reliance upon the following cases. (1) 1978 P Cr. L J 194 (2) 1977 P Cr. L J 480 (3) 1985 P Cr. L J 517 (4) 1984 P Cr. L J 2167 (5) 1984 P Cr. L J 1026 (6) 1984.P Cr. L J 1000. Except the one case, all other dealt with the bail after arrest and hence could not have been relied upon while admitting the respondent to pre-arrest bail Adverting to the concept of further inquiry, I am bound by the judgment of the Supreme Court of Pakistan reported as Ibrahim v. Hayat Gul 1985 S C M R

382. The August Court has observed as under:

"Section 497, Cr.P.C. does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of police station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that 'there are no reasonable o, grounds for believing that the accused has committed a non bailable offence. Without such finding by such finding, by such officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding That being so the accused could not be released on bail on ground of so-called further inquiry under subsection (2) of section 497, Cr.P.C."

5. In the light of these observations in the absence of any opinion by the Investigating Officer this case cannot be considered toy be the case of further inquiry. It was further pertinent to mention that the challan has not yet been submitted and, therefore, there is no opinion of the trial Court so as to consider it a case of further inquiry. In this view of the matter, 'the learned Additional Sessions Judge has erred in the exercise of discretion under section 497, Cr.P.C.

6. Coming now' to the crux of the matter, repeatedly it has been laid down that bail before 'arrest has to be granted in exceptional and rare cases and such remedy is available only when a person is being involved with an ulterior motive for being disgraced. In this behalf I am fortified by the judgment of this Court reported as Hidayat Ullah v. The State P L D 1949 Lah. 21 and the case P L D 1984 SC 192.

7. Syed Sajjad Raza Jafari, Advocate, vehemently argued that since the sectarian issue was involved, therefore, necessarily it is a mala fide case. I am afraid the contention has no force. I have gone through the police file and at one stage of the investigation the respondent and his associates executed an agreement appointing three Arbitrators to decide the issue and it was agreed that if any one of these three Arbitrators on Holy Qur'an in mosque affirmed after holding a Punchayat, that in fact the respondent had participated in the occurrence, he should be treated as guilty. In pursuance of the said agreement an assembly took place in the mosque and after making a thorough probe two of the Arbitrators gave verdict against the respondent. Strictly speaking, such proceedings are not binding upon the Courts, but yet sight cannot be lost of such development. It was further argued that the inquiry by the Arbitrators was ex parte because the respondent and his associates did not join it. The Investigating Officer proved the same from the record that the respondent had himself absented from the proceedings. The learned Additional Sessions Judge on the basis of this material observed that the investigation was dishonest. I fail to understand as to how such findings were given by the learned Additional Sessions Judge. The material on the record is sufficient to prove that' the investigation prima facie was fair. As far as the ineffective firing is concerned, in such like cases its benefit cannot be given to the respondent. The Supreme Court of Pakistan in the case reported as Rashid Khan v. The State 1986 SCMR 934 declined to grant bail and the order of the High Court refusing to; grant bail was upheld. I am not impressed by the argument of ineffective firing because in my view the intention of such person becomes manifest when the trigger is pressed. In this view of the matter, I am of the view that it was not a fit case for the grant of pre-arrest bail and the exercise of the discretion by the learned Additional Sessions Judge is not in accordance with the principles governing such exercise. Accordingly this petition is allowed and the bail granted to the respondent is hereby cancelled. S . A . Bail cancelled.