1999SCMR 1360 (PLP)

SH. RIAZ AHMED, J.

The petitioner seeks leave to appeal against the order, dated 10-7-1998 delivered in Criminal Miscellaneous No.3411-B of 1998 whereby the bail application moved by the petitioner in a case registered against him under section 302/34 of P.P.C. for causing murder of Abid Mohsin deceased was rejected.

2. The brief facts leading to the institution of this petition are that Raza Mohsin moved an application before the S.H.O., Garden Town, which became basis of the F.I.R. The complainant stated that he was a practising advocate and was resident of Babar Block, Garden Town, Lahore. On 18-3-1998 at about 5-00 p.m. younger brother of the complainant was standing outside his house alongwith his friend Haider Shah. At that time, Raja son of Sufi Akram resident of Babar Block passed that way in a motor car bearing Karachi registration number at a very high speed playing music deck of the car at a high volume. Deceased Abid Mohsin told Raja to drive slowly and to play the music at a low volume. In response thereto, Raja and his companions started hurling abuses. Haider Shah forbade them from doing so and Raja and his companions left the scene declaring that if they were again forbidden, they would kill them. Shortly thereafter, the complainant/petitioner also came out of the house and deceased and Haider Shah appraised him of the incident; They were busy in conversation when Raja returned to the place of occurrence in the same car armed with a pistol accompanied by a gunman carrying a pump action gun and another friend of Raja was armed with a base ball bat while another friend was armed with a Danda. Raja stopped the car and got down from the same. Those armed with fire-arms aimed their weapons at Raza Mohsin and Haider Shah while Raja exhorted his companions to kill Abid Mohsin because he had forbidden him to play the music. On this attack was launched and the one who was armed with base ball bat gave successive blows on the head of Abid Mohsin deceased as a result of which he started bleeding profusely. The accused carrying Danda, i.e. respondent No. l also inflicted blows while the gunman fired with his pump action gun directly. On the receipt of these injuries, Abid Mohsin fell down on the road restlessly and Raja then fired with his pistol in the air and took away his companions remarking that he had taught a lesson to those forbidding him to drive the car or playing music at a high volume.

3. The deceased also made a statement before his mother in which Hasnain and others were implicated, which ,became his dying declaration and in the said statement, Hasnain was attributed blow while the scenario in which the attack was launched, was also narrated.

4. Initially the case was registered under section 324/34, P.P.C., but after the death of Abid Mohsin, it was converted into one under section 302/34, P. P. C.

5. In support of this petition, it was contended that no overt act had been ascribed to the petitioner save for ineffective firing, which also stands disproved because no empty was recovered. It was further argued that only Hasnain was attributed fatal blow and the petitioner had nothing to do. The circumstances p thus revealed that it was only Hasnain, who had fired the fatal shot. The question of vicarious liability of the petitioner will be determined at the trial. In this view of the matter, it is a case of further inquiry covered by section 497(2), Cr.P.C. Accordingly, we convert this petition into appeal, allow the same and direct that the petitioner shall be released on bail provided he furnishes security in the sum of Rs.2,00,000 with one surety in the like amount to the satisfaction of the trial Court. N.H.Q./F-48/S ?????????????????????????????????????????????????????????????????????? ??????????? Bail allowed.