1981 P Cr (PLP)

S. 497-Bail, grant of-[Murder-case]-Both petitioner and co-accused ascribed specific part of holding deceased by arms thereby enabling principal offender in striking deceased with a toka

Co-accused enlarged on bail by invoking principle of vicarious liability although point of application car otherwise of such rule equally available to petitioner whose role in occurrence in no way dissimilar to co-accused's--Petitioner also allowed bail, in circumstances. Lai Din v. Muhammad Malik and 4 others 1973 P Cr. L J 624 ref. Mohammad Iqbal Nadeem Awan for Petitioner. Habib Subhani for A.-G. for the State. According to allegations in the first information report lodged by Bashir Ahmad a brother of Yaseen alias Naseer deceased who claims to have witnessed the incident, Mushtaq Ahmad petitioner and Munawar Hussain had held the deceased by his legs and arms respectively and Arshad had dealt him a number of injuries in the neck, head and hands with `Toka' in his hand. He ran to his dera' raising shouts to inform his relations. The accused had brought the dead body of the deceased to the lands of the complainant when he accompanied by his uncle and brother Nazir Ahmad rushed back to the dera' of the accused. Arshad accused was admitted to bail by learned Sessions Judge on 27th November, 1980 for reasons of ill health. Munawar Hussain whose role in the occurrence was identical to that of the petitioner as indicated above was allowed bail earlier on 16th July, 1980 evaluating the contention that the application of section 34, Pakistan Penal Code in the case of the said accused will be determined at the trial and also for the additional reason that the accused was below 16 on the day of occurrence. Application by the petitioner was rejected on 25th October, 1980 with the observation that he had been attributed a specific role in the crime which had facilitated fatal assault on the deceased by Arshad.

2. Learned counsel for the petitioner contends that the case of the petitioner was in all respects similar to that of Munawwar Hussain. Discriminatory treatment of the petitioner was not justified on any valid ground. Comparison of the observations made by learned Sessions Judge in para. 3 of the order accepting the application of Munawwar Hussain accused with his observations in para. 2 of the order disposing of the application of the petitioner fully sustains the contention of learned counsel for the petitioner. Learned Sessions Judge had allowed bail to Munawwar Hussain relying principally on the precedent case: Lal Din v. Mohammad Malik and 4 others (1). The fact that Munawwar Hussain was below 16 was treated as a subsidiary ground for the order for release of the accused on bail as is evident from the following observations of learned Sessions Judge: "Besides, the birth certificate produced by the petitioner shows his date of birth as 3rd February, 1965. He was less than 16 years of age when this case was lodged on 4th May, 1980. His case falls under the proviso to subsection (1973 P Cr. L J 624) of section 497, Cr. P. C. Of course tender age by itself is no ground to grant bail where the act of causing of death is directly attributed to him, but, in the instant case this principle will not apply because the petitioner is being held vicariously for the main case of murder." In the case of the petitioner learned Sessions Judge had observed "The petitioner is ascribed a specific part namely that he held the deceased by his arms arid thereby enabled Arshad to strike the deceased with a Toka'". The point of application or otherwise of rule of vicarious liability at this stage was available to the petitioner also whose rule in the occurrence was in no way dissimilar to that of Munawwar Hussain. The petitioner was alike Munawwar Hussain also equally entitled to the benefit of the precedent case. Learned State counsel was unable to meet the argument that rule of consistency demanded that the petitioner should have been treated alike Munawwar Hussain. Application allowed, The petitioner is ordered to be released on bail in the sum of Rs. 25,000 with two sureties with personal bond in the like amount to the satisfaction of learned Sessions Judge, Faisalabad. Bail allowed.