1999 P Cr (PLP)

3. Respondent No. l (Gulzar Ali) moved for bail after arrest which was dismissed as being withdrawn. Thereafter, he moved a fresh bail petition which was allowed by Syed Kazam Raza Shamsi, Additional Sessions Judge, Okara vide order, dated 13-3-1998, on the ground that on the prosecution's own showing Gulzar Ali alias Pappoo did not cause any injury to the deceased. The only allegation against him is that he caused a gun shot injury to Zafar Iqbal injured P.W., hence his case would fall within the purview of section 324, P.P.C. and keeping in view the long-detention of the petitioner who was in jail for a period of more than one year and his trial had not yet commenced the learned Additional Sessions Judge, Okara found him entitled to bail. As regards the question of vicarious liability, the learned Additional Sessions Judge observed that "vicarious liability of the petitioner (Gulzar Ali) would only be determined after the conclusion of evidence and at the bail stage the same cannot be determined".

4. Feeling aggrieved Rana Muhammad Safdar, complainant has filed the instant petition under section 497(5), Cr.P.C. for the cancellation of bail of Gulzar Ali alias Pappoo, respondent No. 1, contending that the order of the Court below is perverse which has resulted in miscarriage of justice and sought cancellation, inter alia on the grounds:-- "That 'the learned Additional Sessions Judge had no jurisdiction to adjudicate upon the bail petition when the case had already been entrusted to another Additional Sessions Judge for its trial and disposal and evidence in the case was summoned. Learned counsel further contends that Gulzar Ali (respondent) was involved in a murder case, registered under section 324/302/34, P.P.C. His case, therefore, squarely fell within the four corners of proviso III(V) of section 497, Cr.P.C. He could seek bail on statutory ground after 2 years of his detention in jail. Learned counsel further contends that while deciding the bail matters on statutory grounds, the learned Additional Sessions Judge also discussed the merits of the case which was wholly unwarranted as observed by the Supreme Court in Liaqat Ali's case 1995 SCMR 1819. Last but not least argument put forward with a forensic skill was that the learned Additional Sessions Judge had erred in holding that the question of vicarious liability could only be determined after conclusion of the evidence and at bail stage it cannot be discussed or taken into consideration. " 5. 1 now propose to take up the aforesaid arguments in seriatim. As regards the first contention, it is significant to note that Mr. Kazam Raza Shamsi, Additional Sessions Judge, Okara, who granted bail to the respondents was not the incharge of the case in hand. He was fully alive that the murder ease in which Gulzar alias Pappoo respondent is challaned as an accused alongwith his brother had already been entrusted to another Additional Sessions Judge, Okara for trial and disposal, therefore, he should not have disposed of this bail petition on the ground of propriety, no matter whether he had disposed of an earlier bail petition of the respondent and that of his co-accused and there is wisdom behind this logic. The trial Court which is entrusted with the gigantic task of holding trial and disposal of a murder case is the best Judge in the matter of grant of bail. The trial Judge can well-appreciate whether an under-trial accused should be allowed bail in the given circumstances or not? May be in certain cases the accused who has a legitimate ground for bail may abscond after his release on bail and ultimately his absconsion may hamper the trial and causes delay in the disposal of the case. The trial Judge may or may not grant bail in the given circumstances, that is why it has been held in a chain of authorities by the superior Courts that the bail should not be allowed in a case in which the trial has commenced or likely to commence soon 1980 SCMR 201, 1995 PCr.LJ

66. It is not a requirement of law, but propriety demands that all Courts of concurrent jurisdiction should take off their hands from bail petitions in which cases had been transferred to some other Courts, notwithstanding the fact that they had taken cognizance in the earlier bail petition by their disposal or rejection as withdrawn. Even the instructions issued by the High Court are to this effect, and I quote the relevant portion of the Circular Letter No.10174 MIT/HC/Cr.Misc.383/CB/94, dated Lahore the July 4, 1997 under the subiect: Second subsequent or successive bail applications-- Following of the Principles laid down in Zubair's case PLD 1986 SC 173 by the subordinate/Trial Courts:-- "In the matter of bails in the meeting of Administration Committee held on 4-6-1997, Honourable Chief Justice and Judges have been pleased to observe, resolve and direct as under for strict compliance-- Rule in Zubair's case should be applied as far as possible. However, after commencement of trial, all bail applications arising out of the case should be entrusted to the trial Court." Anyhow Syed Kazim Raza Shamsi, Additional Sessions Judge, Okara while taking cognizance in the bail matter of Gulzar Ali alias Pappoo respondent No. l had not committed any illegality and this cannot be a good ground for the cancellation of bail of Gulzar Ali alias Pappoo respondent No. l by the aforesaid Additional Sessions Judge, Okara.

6. It is undisputable that respondent No. l Gulzar Ali and his brother Intizar Ali while armed with fire-arms emerged on the spot together, and it was Gulzar Ali respondent No. 1, who opened the fire with his .12 bore gun hitting Zafar Iqbal P.W., while his co-accused Intizar Ali was armed with 222 rifle who fired at Khizar Hayat hitting on his chest, which resulted in his death, hence, the emergence of both the accused at the spot together with fire-arms, and opening the attack by respondent No. l at Zafar Iqbal injured P.W. and his co-accused causing fatal blow to Khizar Hayat leads me to ark irresistible conclusion that respondent No. 1, prima facie shared the community of intention with his co accused who caused the death of Khizer Hayat deceased; hence he can legitimately be saddled with constructive or vicarious liability for causing the death of Khizar Hayat by invoking the relevant provision of section 34, P.P.C.

7. Mr. Muhammad Shafiq Bhindara, Advocate learned counsel for respondent No.l has vehemently contended that principle of vicarious liability cannot be dealt with at bail stage. This proposition is controverted by the learned counsel for the petitioner, who relied on 1981 SCMR 1092, 1978 SCMR 7, 1978 SCMR 1416, PLD 1974 SC 236 and 1988 PCr.LJ 410 at page

414. In Munawar v. The State reported in 1981 SCMR 1092, it was observed by the Supreme Court as under:-- "We are in respectful agreement with the observations reproduced above, and consider that it is entirely erroneous to think that in the case of Muhammad Akbar and others, this Court laid down by rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at the time of considering the question of bail. The question is essentially one which has to be determined on the basis of the facts of each case available on record at the time the question of bail comes up for consideration. If on the allegation appearing on the record the condition set out in the provision of law spelling out constructive liability, are made out then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life. " Similarly in 1988 PCr.LJ 410 at 414 it is observed as under:-- "As regards the contention that no overt act is attributed to the private respondents in causing any injuries to deceased Rajab Ali, reference may be made to Munawar's case reported in 1981 SCMR 1092, referred to earlier in this order. Just because no injury is attributed to an accused, it cannot be laid down that a case for bail is made out, if on facts it is established that prima facie, section 34, P.P.C. is attractea '' and the accused can apparently be saddled with constructive or vicarious responsibility. 1984 SCMR 206 relied upon by learned counsel for the respondents does not lay down contrary principle. It is, therefore, to be seen in the facts and circumstances of the each case, whether the accused can, prima facie, be saddled with responsibility under section 34, P.P.C. at the bail stage for denying the concession of bail to the accused."

8. In view of the aforesaid precedent cases it is now well-settled that the principle of vicarious liability can be looked into at bail stage and if it is transparent 'from the contents of the F. I. R. that the accused had acted in pre- 8 concert or he shared the community of intention with his co-accused who caused fatal injury to the deceased, ire can be saddled with constructive or vicarious liability at the bail stage by invoking section 34, P.P.C. and there is no legal bar to determine the question of his constructive/vicarious liability while deciding his bail petition. However, there is no cavil to the proposition that this assessment shall be tentative in nature, and would not prejudice the case of the accused during the trial.

9. In view of the above discussion, I am constrained to hold that opinion of Syed Kazam Raza Shamsi, Additional Sessions Judge, Okara is. absolutely erroneous and misconceived that the vicarious liability of Gulzar Ali alias Pappoo respondent No. l who was petitioner before him, could only be determined after the conclusion of the evidence and this question cannot be looked into at bail stage. This impression should be dispelled for ever. The criminal Courts functioning in this country can competently discuss and determine whether a particular accused is vicariously liable for the acts of his accused or not even at bail stage. However, as pointed out above, this observation shall not be conclusive, final and binding. It would rather be tentative in nature.

10. Coming to the next point the learned Additional Sessions Judge, Okara while dealing with the bail petition of respondent No. l was again misled. He has discussed the merits of the case, although, he was granting bail on statutory ground without realizing that respondent was involved in a murder case, which is punishable with death, and in such a case, third proviso of section 497, Cr.P.C. can be invoked in cases where the accused are detained in jail for a period of more than two years, but the learned Additional Sessions Judge granted bail to respondent No. l who had not completed this statutory period. I am also at pains to note that he has observed that the case of respondent No. l falls within the purview of section 324, P.P.C. This essentially pertains to the merits of the case, and it was neither proper nor possible for him to determine this point at bail stage.

11. The order of the Court below is perverse and patently illegal on the following grounds: -- (i) that the propriety demands that he should not have disposed of this bail petition, particularly when the case had been entrusted to some other Court of competent jurisdiction; (ii) that the learned trial Judge made erroneous observations that the petitioner was only liable under section 324, P.P.C. and the question of vicarious liability could only be determined after recording evidence; and (iii) that respondent No. l was involved in a murder case punishable with death and he could not have been enlarged on bail under proviso III(v) of section 497, Cr.P.C. unless he had completed a period of two years in jail but the learned Additional Sessions Judge admitted him to bail after a period of one year.

12. All these facts speak volume about the validity and correctness of the impugned order. However, the most pivotal question which arises at this juncture is whether this Court would be justified to cancel the bail granted to respondent No. l by a Court of competent jurisdiction under section 497(5), Cr.P.C.

13. It is now well-settled that consideration for the grant of bail and cancellation of bail are absolutely different. Once an accused has been released on bail his liberty cannot be interfered with lightly. However, what I have been able to gather from the celebrated judgments of the apex Court is that following are the legitimate grounds which have been recognized by the superior Courts of Pakistan for cancellation of bail:-- (i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice; (ii) Some fresh facts or material has been collected by the police during the investigation which may tend to establish or point out the guilt of the accused. (iii) That the accused misuses his liberty by indulging in similar criminal activity; (iv) That he interferes with the course of investigation; (v) That he attempts to tamper with the prosecution evidence; (vi) That he threatens the witnesses or indulges in similar activity which' would hamper the smooth investigation and there is likelihood of his fleeing to other country; (vii) That he makes himself scarce by going underground or becoming unavailable to the Investigation Agency.

14. These grounds are illustrative and not exhaustive. Cancellation of bail is a hard order, because it interferes with the liberty of an individual, hence, it must not be resorted to lightly. Rejection of bail when bail is applied for is one thing and cancellation of bail when granted is another, because cancellation of bail interferes with the liberty already secured by the accused either on the exercise of discretion by the Court, or by thrust of law. Hence, power to take back in custody, an accused who has been enlarged on bail is to be exercised with care and circumspection. That does not mean that power though extraordinary in character must not be exercised even if the ends of justice so demand, and in this case, it is being exercised in favour of the petitioner.

15. In the instant case, the respondent and his brother had come to the spot fully determined to take the lives of their opponents. They were armed with deadly weapons. They fired at their enemies simultaneously. I am, therefore, constrained to hold that respondent No.1 Gulzar Ali, prima facie is vicariously' and constructively liable for the murder of Khizer Hayat, although he was hit by his co-accused, by application of section 34, P.P.C. He could not be granted, bail on statutory ground, because he had not completed two years in jail. The impugned order is patently illegal, factually incorrect and perverse which has resulted in miscarriage of justice. Consequently, this petition is accepted and the order impugned, dated 13-3-1998 passed by learned Additional Sessions Judge, Okara whereby respondent No. l Gulzar Ali was granted bail is set aside being wrong and perverse and the bail granted to respondent is hereby cancelled. He should be taken into custody forthwith. N.H.Q./M-747/L Bail cancelled.