1992 P Cr (PLP)

Ejaz Muhammad Khan, AA.‑G. for the State. Sultan Shehryar Khan Marwat for Respondents Nos.l and

2. Date of hearing: 20th September, 1989. Gul Raza petitioner had moved this petition for cancellation of bail allowed to Dilawar Khan and his son Usman, accused‑respondents, by the learned Sessions Judge, Bannu, vide order, dated 15‑1‑1989, in a case under sections 302 and 307 read with section 34, P.P.C.

2. The F.I.R.'s version is that on 22‑10‑1989 at Diggarwella, the petitioner alongwith his brother Abdul Raza (deceased), Mir Nawaz, Mustafa and Begum Jana, prosecution witnesses, were sitting in front of their house on the summons of Arbitrators who had come at the instance of the parties for the enforcement of the verdict of the Arbitrators over the disputed path. The Arbitrators visited the complainant party and after listening to their version went to the opposite side, when in the meantime the four accused including respondents 1 and 2 duly armed appeared at the venue of the crime and fired at them. The fireshot of absconding accused hit Abdul Raza killing him instantaneously whereas the prosecution witnesses ran for shelter in their house and thus escaped unhurt. The accused are alleged to have decamped after the occurrence. The accused‑respondents were arrested on 6‑11‑1988 while their co‑accused Nasrullah and Adam Khan are still absconders.

3. Learned counsel for the petitioner contends that the accused respondents are directly charged in the F.I.R., that their unexplained abscondence disentitles them for the grant of concession of bail irrespective of the merits of the case, and that the recoveries of two bullets from the spot and two bullet marks on the northern wall of the house of the petitioner fully corroborates the charge of participation of all the accused including the two accused‑respondents in the offence and are thus vicariously liable.

4. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate‑General appearing on behalf of the State, has also adopted the arguments advanced on behalf of the petitioner and invoked the principle of vicarious responsibility qua the accused‑respondents and urged that they should not have been allowed bail, moreso when the complainant party had gathered at the instance of the Arbitrators.

5. Sultan Sheheryar Khan, the learned counsel for the accused respondents, on the other hand, submits that the two accused‑respondents, have been roped in falsely and have been attributed the role of ineffective firing. He also argued that the deceased had sustained only one fire‑arm injury and the bullet marks on the wall and the recovery of empties would rather reinforce this contention that it was the job of only one assailant or at the most of two which can possibly be attributed to the absconders particularly to Nasrullah Khan absconder who has been solely assigned the role of effective firing.

6. The first question to be addressed is of the alleged abscondence of the accused‑respondents. From the perusal of the record, it is not discernible that a warrant under section 204, Cr.P.C. was issued against the respondents. Similarly the proclamation under section 87 of the Criminal Procedure Code is not shown to have been issued against these two accused‑respondents. There is also nothing on the file to show that the Investigating Officer had made any effort to arrest the respondents herein. I am, therefore, of the opinion that prima facie the alleged abscondence is not proved against the accused respondents at the moment.

7. I have considered the submissions made by the learned counsel for the parties with care. I rind that the two accused‑respondents had not caused any injury to the deceased, that both of them had allegedly fired at the complainant party which proved ineffective and that in the peculiar circumstances of the case, the question of their vicarious liability requires further inquiry.

8. Undoubtedly there is a direct charge of constructive liability in the F.I.R. against the accused‑respondents. Nonetheless, the learned Sessions Judge has extended the concession of bail to the accused‑respondents for cogent reasons. In the peculiar circumstances of this case, the trial Court on the basis of the material placed before it, such as F.I.R. and statements recorded under section 161, Cr.P.C. would be fully justified to go into the question whether a case of constructive liability is made out, and in that case the accused‑respondents would certainly be liable for such liability.

9. For what has been discussed above, I find no justification to interfere in the order of the learned Sessions Judge granting bail to the accused respondents. The petition for cancellation of their bail is, therefore, dismissed. H.B.T./1313/P Petition dismissed.