1995 P Cr (PLP)

‑‑--‑S. 497(5)‑‑‑Penal Code (XLV of.1860), S. 302/364/324/148/149`109/379‑‑ Cancellation of bail‑‑‑Earlier application for cancellation of bail granted to accused had already been dismissed on merits by High Court‑‑‑No fresh ground was raised in the present petition which was not maintainable in the eyes of law and the same was dismissed accordingly. Sardar Latif. Khan Khosa and Malik Muntazir Mehdi for Petitioner. Sahibzada Farooq Ali Khan for the Complainant. Zafar Mahmood Anjum for the State. Petitioners Mushtaq Hussain and Nasir Shah have applied for post- arrest bail in a case registered against them vide F.I..R. No.58/93, dated 27‑2‑1993 under sections 364, 302, 324, 148, 149, 109, 379, P.P.C. at Police Station Saddar, Mailsi, District Vehari through Criminal Miscellaneous No.100/B. of 1994, Criminal Miscellaneous No.1062/B of 1994 and Criminal Miscellaneous No.1064/B of 1994 respectively. While Mukhtar Ahmad complainant has sought recalling of order, dated 28‑11‑1993 in Criminal Miscellaneous Nos.640/CB of 1993 and 1051/B of 1993 through Criminal Miscellaneous No.1796/CB of 1994, which will be disposed of by this single order.

2. Briefly stating the facts that on 27‑2‑1993 at about 8‑30 a.m. Mukhtar Ahmad complainant alongwith Hafiz Allah Yar and Sajjad Hussain was present in Karampura Bazar. Muhammad Iqbal, his brother carne in his Si17uki Jeep bearing No.806,/MNN while going towards his lands. He was having hi, licensed rifle when he reached Chowk Usman Ghani, a white Toyota Car struck side with his jeep. Both the vehicles stopped. Out of car Mushtacl Hussain alias Makhay Shah, the petitioner armed with rifle, Guftar Shah alias Gobi Shah son of Ghulam Shah armed with 222 rifle, Mukhlar alias Makha son of Allah Ditta empty‑handed came out. Meanwhile another jeep owned key Nasir Shah reached there. Nasir Shah petitioner armed with rifle, Altaf Shah armed with .12 bore gun, Tariq Shah armed with .12 bore gun emerged from the said jeep. Mushtaq Hussain Shah raised a Lalkara that Muhammad Iqbal (deceased) will be taught a lesson for marrying a Syedzadi and taking possession of her lands. Muhammad Iqbal (deceased) leaving the jeep entered Bhutta Market in the Chowk and closed the door. Accused persons scaled over the adjoining room and resorted to firing. Muhammad Iqbal (deceased) fell down after receiving injuries. One shopkeeper Zulfiqar was also injured. The accused persons thereafter dragged Muhammad Iqbal (deceased) outside the market, put him in the jeep and abducted him.

3. The motive as alleged in F.I.R. is that two years earlier, Muhammad Iqbal (deceased) married Mst. Sagheer Mai daughter of Ata Muhammad Shah. It is further alleged that some time back Mst. Sagheer Mai was illegally confined and on the petition filed by Muhammad Iqbal (deceased), she was recovered by the order of this Court. Mst. Sagheer Mai owns 8/9 squares of agricultural land. Because of the above grudge, Mst. Sagheer Mai being daughter of the uncle of Sajjad Hussain Shah, and niece of Khadim Hussain Shah, Muhammad Iqbal (deceased) was done to death. It is further alleged that occurrence took place on the conspiracy of Sajjad Hussain Shah and Khadim Hussain Shah who are in possession of land of Mst. Sagheer Mai.

4. It is submitted by the learned counsel for the petitioner that petitioners have nothing to do with Mst. Sagheer Mai and her lands. No where it is alleged that the petitioners had any liaison with the co‑accused Sajjad Hussain Shah and Khadim Hussain Shah or any other co‑accused; that there, is no specific injury and also no specific role is attributed to the petitioners. The matter of vicarious liability is a question of facts which will be determined at the time of trial. At this stage specific acquisition of crime cannot be determined in a multiple firing; that during investigation Altaf Hussain Shah, Khadim Hussain Shah and Sajjad Hussain Shah were declared innocent by the Investigating Agency which creates doubt on the testimony of ocular account and shaked the version of the complainant; that nominated accused Tariq Shah was substituted by Khalid Shah on the written application of the complainant, whereas, complainant is an eye‑witness, who at the time of recording of F.I.R. specifically nominated Tariq Shah showing him armed with gun. Such conduct of the complainant speaks of malicious and mala fide attitude which is always condemned by the law, that dead body of deceased was recovered from the area of Police Station Shahr Farid which is far away from the place of occurrence and that was not recovered at the instance or pointation of any nominated person in the F.I.R.; that the conduct of Muhammad Iqbal (deceased) seems to be as that of ill‑repute person. Possibility lies that he might be murdered during his illegal and immoral acts in the area of Shahr Farid with anyone; that Altaf Hussain co‑accused to whom a similar part was attributed, allowed bail by this Court; that the petitioners request for bail on the basis of principles of consistency; that the petitioners' case definitely fall within the ambit of further inquiry.

5. The contentions raised are opposed by the learned State counsel as well as counsel for the complainant.

6. I have heard the arguments and gone through the file. On plain reading of F.I.R. it appears that it is a case of double version and sudden fight took place. Specific liability cannot be fixed on one side and still it is to be determined that which party is aggressor. There was indiscriminate firing on both sides and nobody could note that whose fire hit whom. No specific role is attributed to the petitioners. The matter of vicarious liability is question of fact which will be determined at the time of trial. Dead body of Muhammad Iqbal (deceased) was not recovered at the instance or pointation of any nominated person in the F.I.R. According to the F.I.R. complainant is the eye‑witness who at the time of recording of F.I.R. specifically nominated Tariq Shah armed with gun but later on through written application Tariq Shah was substituted by Khalid Shah. This conduct of the complainant, speaks of malicious and mala fide attitude on the part of the complainant which is always condemned by law. Petitioners Mushtaq Hussain Shah and Nasir Shah are shown armed with rifle in the F.I.R. Keeping in view the size of injuries and presence of pellets in some wounds, injuries Nos.1 to 6 on the person of Muhammad Iqbal (deceased) are prima facie appear to be caused by .12 bore gun. Co‑accused Altaf Shah is on bail and his role is not distinguishable to that of the petitioners. Petitioners deserve bail even on the basis of‑ principles of consistency. Mumtaz Hussain Shah son of Barkat Ali was held responsible for the death of Muhammad Iqbal (deceased) by all the Investigating Agencies. This makes the case doubtful and that of further inquiry. This being the position, the petitioners are admitted to bail subject to furnishing their bail bonds in the sum of Rs.1,00,000 (Rupees one lac only) each with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Mailsi.

7. As regards Criminal Miscellaneous No.1796/CB of 1994 my learned brother Sh. Khizar Hayat, J. had dismissed an earlier application for cancellation of bail on merits on 28‑11‑1993 and no fresh ground is raised to this petition. Criminal Miscellaneous 1796/CB of 1994 is not maintainable in the eyes of law and the same is dismissed accordingly. N.H.Q./M‑1994/L Order accordingly.