1998 P Cr (PLP)

Samual Masih v. The State 1989 PCr.LJ 693; Sajwara and another v. The State 1989 PCr.U 2387; Muhammad Sharif v. The State 1981 PCr.LJ 704; Muhammad Hussain v. The State 1992 PCr.LJ 2139; Muhammad Ismail v. Patten Malak and others 1979 SCMR 91 and Ghulam Nabi v. The State 1996 SCMR 1023 ref. Malik M. Nawaz Khan for Petitioner (in Criminal Miscellaneous No.722/B.of 1997). Kh. Muhammad Fayyaz Ahmad for the Complainant and for Petitioner (in Criminal Miscellaneous No.791/CB of 1997). Amjad Hamid Ghori for the State. Ayub Kiani for the State (in Criminal Miscellaneous No.791/CB of 1997). This order will dispose of both the matters cited in the title as they arise out of the same F. I. R.

2. A case under. section 302/34, P.P.C., was registered against Wahid Zar, Ghulab Zar and Muntazar for an occurrence, which took place on 23-5-1997 in which Wahid Khan had lost his life and Arif Khan and Tahir Shah P.Ws. had sustained injuries. According to the F.I.R. No.165, dated 23-5-1997 registered at Police Station, Pir Widhai, Rawalpindi Wahid Zar while armed with a pistol had fired at the deceased, which proved fatal. The petitioner Muntazar while armed with a Chhuri caused simple injuries with his weapon of offence to Arif Khan on his right thumb and left palm of his hand. One of his co-accused Gulab Zar while armed with a Lathi had caused a simple injury each to Tahir Shah P.W. on his nose and thumb. .

3. The aforesaid Gulab Zar was admitted to post arrest bail by Mr. Muhammad Mujahid Hussain, learned Additional Sessions Judge vide his order, dated 25-6-1997. That order is assailed in the petition for cancellation moved by Khan Waiz complainant vide Criminal Miscellaneous No.791-CB of 1997 with the prayer that the bail granted to Gulab Zar be cancelled, as he was vicariously liable with the principal accused namely Wahid Zar. Likewise Muntazar applied for bail to the aforesaid Court which was dismissed by the same learned Additional Sessions Judge vide order, dated 25-7-1997. He has filed Criminal Miscellaneous No. 722-B of 1997 for bail on the ground that his case was not distinguishable from his co-accused Gulab Zar who has been admitted to bail by the learned Additional Sessions Judge and as such on the principle of consistency he was entitled to bail; that the injuries attributed to him have allegedly been caused to one of the P.Ws. on non-vital parts of his body; that there is cross version for which a complaint has already bees instituted in which complainant side has been summoned. As such it is prayed that the petitioner is entitled to bail in view of the principle laid down in Samual Masih v. The State reported as 1989 PCr.LJ 693 (Lahore) and Sajwara and another v. The State reported as 1989 PCr.LJ 2387 Lahore. Likewise it is contended that bail granted to Gulab Zar is not liable to be cancelled because he has also been attributed simple injury to a P.W. without being attributed any overt act towards the deceased; that the case having two versions require further inquiry; that Gulab Zar after earning bail has not misused the same. Reliance was placed on Muhammad Sharif v. The State reported as 1981 PCr.LJ 704 and Muhammad Hussain v. The State reported as 1992 PCr.L12139 (Lahore).

4. The learned counsel for the complainant (Kh. Muhammad Fayyaz Ahmad, Advocate) has contended that the petitioner as well as his co-accused Gulab Zar are vicariously liable with the principal accused Wahid Zar as all of them had a common motive and had come to the spot duly armed. In such a situation, they had allegedly no case for bail. The mere fact that they had caused simple injuries to P.Ws. would be irrelevant at this stage. Reliance was placed on Muhammad Ismail v. Pattan Malak and others reported as 1979 SCMR 91 and Ghulam Nabi v. The State reported as 1996 SCMR 1023.

5. I have taken into consideration the arguments addressed at the Bar and the case-law relied upon by the learned counsel for the parties. It is clear that petitioner Muntazar is attributed simple injuries to a P.W. on the non vital parts of his body. Likewise his co-accused Gulab Zar had wielded a Lathi to cause two simple injuries to another P.W. namely Tahir Shah on the non vital parts o1 his body. It is also clear that none of the two has been attributed any overt act towards the deceased. In such a situation, their vicarious liability remains open for determination during the trial. There is also a cross version for which complaint has been lodged and the complainant side has been summoned therein In such a situation and particularly because of, the role attributed to Muntazar and Gulab Zar, they had an identical case to each other which of course needed l further inquiry. The impugned order granting bail to Gulab Zar by the learned lower Court does not appear to be perverse or suffer from any legal or factual I infirmity of any fundamental nature, so as to warrant interference by this Court. Likewise the case of Muntazar petitioner is not distinguishable from his co- accused.

6. In view of what has been stated above, the petition for cancellation of bail (Criminal Miscellaneous No.791-CB of 1997) is dismissed.

7. The bail petition (Criminal Miscellaneous No.722-B of 1997) is allowed and the petitioner Muntazar is admitted to bail in the sum of Rs.50,000) with one surety in the like amount to the satisfaction of the learned Trial Court. N.H.Q./M-564/L Order accordingly.