1989 PLP 710 (MLD)

Sh. Javed Iqbal for the State. This is an application under section 497(5) of the Criminal Procedure Code seeking cancellation of bail allowed to the respondents by the learned Sessions Judge, Khanewal. Vide two separate judgments dated 3‑2‑1988 and 29‑2‑1988, the bail was allowed to the respondents.

2. Briefly the facts of the case as disclosed in the F.I.R. by the complainant are that on the fateful day, he alongwith his deceased brother Sajid Masih after digging grass from the Behni of one Chaman were proceeding to their house. Saleem son of Chaman reprimanded them and asked them as to why, the complainant and his brother passed from near his house and started abusing them. According to the F.I.R., the complainant gave a slap to Saleem and thus the altercation attracted the mother of Saleem, Mst. Zenab to intervene. It is alleged that Mst. Zenab also started abusing the complainant and his brother whereupon, the deceased Sajid Masih pushed her as a result of which, she fell down. The complainant and his deceased brother Sajid Masih went to their house. They were standing in front of their house while their father Ayub Masih and their brother Javed also came there. At about 10 a.m. the respondent Akram armed with a .12 bore gun, Akbar Shahbaz armed with a dagger, Samar armed with a Sota, Zulfiqar armed with a Sota, while Saleem respondent armed with a Sota also reached there. Respondent Akram raised a Lalkara that the complainant will not be spared and they will be taught a lesson for having injured Saleem and for insulting his mother. Akbar Shahbaz inflicted a Khanjar blow in the abdomen of Sajid Masih as a consequence of which, he fell down. Samar respondent inflicted a Sota blow on the left hand of the complainant. Saleem respondent infected a Sota blow on the left knee of the complainant. The father of the complainant tried to intervene, when Saleem, respondent inflicted a Sota blow on the left eye and forehead of the father of the complainant. Akram, respondent inflicted a blow with the butt‑end of his gun to the brother of the complainant namely Javed on his left arm. Saleem respondent then inflicted a Sota blow on the left leg of Javed, the brother of the complainant. Likewise, Zulfikar also inflicted a Sota blow on the finger of the left hand of Javed. It was further stated that during the fight, the accused side also received injuries. The occurrence attracted other villagers who had intervened and the parties were separated.

3. Since Akbar Shahbaz was attributed fatal blow to the deceased with a Khanjar in his abdomen, therefore, he was not allowed bail. A perusal of the F.I.R. clearly shows that after having inflicted blow with a Khanjar on the deceased, none of the respondents inflicted any blow to the deceased, though, he was lying on the ground.

4. The learned counsel for the petitioner Mr. Athar Rehman, Advocate, has vehemently argued that all the respondents are liable vicariously and sections 148 and 149, P.P.C. are fully attracted to the facts of the case, inasmuch as, all the respondents, in prosecution of their common object had committed the murder of Sajid Masih. In support of his contention, the learned counsel has cited 1987 SCMR788, 1987 PCr.LJ 1958 and 1987 SCMR 270.

5. On the other hand, Sahibzada Farooq Ali, Advocate, learned counsel for the respondents has strenuously argued that the facts of the cases cited at Bar are distinguishable. The learned counsel for the respondents has further been contended that it is yet to be determined that which side is the aggressor. According to the learned counsel for the respondents, the occurrence had taken place on the Behni of the complainant and therefore, it was clear that the complainant side was the aggressor. It was further argued that the question of the determination of vicarious liability is the function of the trial Court and it is yet to be determined whether the principles of vicarious liability are attracted or not. It is next contended that the perusal of the F.1.R. clearly shows that both sides were injured and they wanted to test their strength and, therefore, it was the case of individual liability.

6. Having considered the various contentions raised by the learned counsel for the petitioner and the respondents, there is force in the contention raised by the learned counsel for the respondents that it is yet to be determined whether the respondents are vicariously liable or not. As far as the role of the respondents is concerned, they had not caused any injury to the deceased. It has further been brought into my notice that Mst. Zenab has also filed a private complaint in response to which, the complainant side has been summoned as the accused persons. In this view of the matter, the discretion exercised by the learned Sessions Judge while granting bail to the respondents is based upon sound judicial principles and does not warrant interference. Accordingly, this petition is dismissed. H.B.T./S‑368/LPetition dismissed.