1988 P Cr (PLP)

2. The incident is alleged to have taken place at 2 a.m. on 5‑7‑1986 and the F.I.R was lodged 10 hours thereafter at about 12 noon at Police Station Matli which is at a distance of about four miles from the place of the incident. There is some dispute between the complainant and the accused party over land. In the relevant part of F.I.R. lodged by complainant Mangior whose maternal uncle Rajab Ali had been killed in the incident, in which incident, according to the prosecution, complainant Mangio and his cousin Mitho had also suffered some injuries, it is stated as follows:‑‑

"Last night, I, my maternal uncle Rajab Ali and cousin Mitho were sleeping in the but and the lantern was on. On 5‑7‑1986 at about 2‑00 a.m. we woke up on the noise of steps and saw on the light of lantern and identified Alan, Ghulamoon, Allah Rakhio Bachayo, all by caste Mangsies came at our hut. Out of them Allan was armed with cartridge pistol, Ghulamoo had hatchet in his hand and others had lathies. On coming there, they abused us and said that why we have not dismantled our but and have not left the harp on saying so, Allan fired from his pistol directly towards my maternal uncle Rajab Ali, which hit him at his Rajab Ali fell down and died. Ghulamoon inflicted back side of hatchet blow on the left shoulder of Mitho, Mitho also fell down. Bachayo and Allan Rakhio caused fist and kick blows to me. Then the accused took the dead body of my maternal uncle Rajab Ali and were bringing us towards their house, but on the way, I ran away from the accused and came to our house. Accused have taken Mitho and the dead body of deceased Rajab towards their house. Then I sent a man to my brother Muhammad Khan from our house, as he had gone to Matli, who came to our house, whom I narrated the above facts. I accompanied him to P.S. and have come to lodge the report that above‑named accused in conspiracy of each others accused Allan has fired from his pistol, which hit my maternal uncle Rajab Ali at his chest and have caused his murder and have taken Mitho towards their house and have wrongfully confined him there." According to the prosecution version, there are two eye‑witnesses of the incident with corroboration provided by Muhammad, brother of complainant Mangio, and there are recoveries and additionally there is also the allegation of the prosecution that the dead body of Rajab Ali had been dragged by all the accused from the place of the incident to the house of Ghulamoo where Mitho (injured) had been tied to a tree by the accused. The entire reasoning of the learned Additional Sessions Judge in' granting bail to the two private respondents is reproduced below:‑‑ "There is an inordinate delay of 10 hours in lodging the F.I.R. The deceased Rajab Ali is fired by accused Allan from pistol and he died there and then instantaneously. Accused Ghulamoon is said to be armed with hatchet while accused Bachayo armed with. Lathi. Accused Uhulamoon is attributed back side hatchet blow caused to P.W. Mitho while accused Bachayo is attributed kicks and fists blows to complainant. No overt act is attributed to the present accused in committing the murder of deceased Rajab Ali. The injury caused by accused Ghulamoon with back side of hatchet to P.W. Mitho is not on the vital part of the body. It is yet to be determined whether the accused are Vicariously liable for the murder of deceased Rajab Ali and as such the case of the accused is of further enquiry." It was submitted by Mr. Aftab Ahmed Akhund, learned counsel for the applicant, that the cases of the two private respondents come within the mischief of section 34, P.P.C. and they are, therefore, vicariously liable for the murder of Rajab Ali. Admittedly no injury to deceased Rajab Ali is attributed to the two private respondents, namely, Bachayo and Ghulamoo, as according to the prosecution version deceased Rajab Ali died on account of pistol injuries inflicted by the main accused Allan. Learned counsel for the applicant has, in support of the present application under section 497(5), Cr.P.C., relied upon the judgment of the Supreme Court in the case of Munawar v. The State reported in 1981 S C M R 1092 in which three earlier decisions of the Supreme Court were considered namely Muhammad Akbar v. The State 1978 S C M R

7. Khadim Hussain v. The State 1978 SCMR 1416 and Nazar Muhammad v. The State P L D 1978 S C 236 and, thereafter, it was observed in 1981 S C M R 1092 by the Supreme Court as follows:‑‑ "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 any 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 the record at the time the question of bail comes up for consideration. If on the allegation appearing on the record the conditions set out in the provisions 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." The learned A . A . ‑G . also submitted that the facts and circumstances of the instant case did not make out a case for grant of bail to the two private respondents as they are to be saddled with constructive or vicarious liability/ responsibility for the murder of deceased Rajab Ali. The learned A . A . ‑G . has also referred to another decision of the Supreme Court in the case of Ziaul Hassan v. The State P L D 1984 S C 192, for the proposition that no hard and fast rule has been laid down about time limit for moving an application for cancellation of bail under section 497(5), Cr.P.C. by the complainant and this question is to be determined on facts and circumstances of the each case. Another decision of the Supreme Court which was cited is in the case of Arbab Ali v. Khamiso and others 1985 S C M R

195. Specific mention was made of following observation by the Supreme Court in that judgment:‑‑ "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of "further inquiry". It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497) under subsection (2) of section 497, Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the police officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court." On the other hand, Mr. Muhammad Jamil, learned counsel for the private respondents /accused, submitted that no case has been made out for cancellation of bail granted to the two private respondents. It was first pointed out that there was an inordinate delay of 10 hours in lodging of the F.I.R. although the police station is only about four miles from the place of incident. It was then pointed out that apparently it is a trumped up case made by the complainant party to involve the accused falsely in this case and the complainant instead of lodging the F.I.R. within a reasonable time, is alleged to have called his brother, Muhammad, a Police constable, from Matli and after discussing the matter with him false story was presented to the Police Station Matli so as to involve, implicate and harass the accused. According to learned counsel it appears to be an unwitnessed crime. It was then argued that no overt act has been attributed to the two accused in so far as the murder of deceased Rajab Ali is concerned and even the injuries to the two injured witnesses including the complainant, if at all the prosecution version is to be believed, are neither grievous nor on vital parts of the persons of the injured. In this context reliance has been placed on a decision of the Supreme Court in the case of Muhammad Nazir v. The State 1984 S C M R

206. Further contention advanced by the learned counsel for the private respondents /accused was that there is a delay of nearly 22 days in filing of the present application for cancellation of bail under section 497, Cr. P. C . and this had to be filed within a reasonable time and in this context a decision of a learned single Judge of this Court in the case of Piaro v. The State 1984 PCr.LJ 149 was relied upon. It was additionally submitted that concession of bail has not been abused by the private respondents and that no case has been made out for cancellation of their bail. I may first deal with the question of delay in filing of the application for cancellation of bail under section 497 Cr.P.C. No doubt, in the cited decision of the learned single Judge of this Court reported in 1984 P Cr.L.J. 149, it has been observed that such application under section 497(5) Cr.P.C. has to be filed promptly. But it has not been laid down as to what would be a prompt filing of the cancellation of the application or that would be a reasonable time within which such application for cancellation of bail has to be filed. The learned A . A .‑G . on the other hand, cited P L D 1984 S C 192 where it has been laid down by the Supreme Court that there is no rigid rule regarding the period whereafter bail should not be cancelled and that it might become relevant in some cases but no hard and fast rule can be laid down and it appears upon the circumstances of each case. In my view, in the instant case, the present application for cancellation of bail is not barred or liable to be dismissed on the ground that it has been filed after 22 days of the order granting bail to the private respondents. It cannot be said that in this case there is inordinate or unreasonable delay in filing the present application for cancellation of bail. 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 attracted and the accused can apparently be saddled with constructive or vicarious responsibility. 1984 S C M R 206 relied upon by learned counsel for the private respondents does not lay down any 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. In the instant case, it had been argued, on 'r behalf of the respondent, that there is inordinate delay of 10 hours in lodging of the F.I.R. which not only shows mala fides but also indicates that this is a false case and perhaps an unwitnessed crime. In the facts of this case, I am not inclined to agree with learned counsel for the private respondents that this 10 hours delay in lodging of the F.I.R. made out a case for grant of bail to the respondents. An explanation has been given for the delay that the injured complainant had called his brother from Matli and thereafter the F.I.R. was lodged. I do, not want to make a detailed comment upon this aspect of the case' but suffice it to observe that some explanation for the delay has been offered and this delay, in my view, did not make out a case for grant of bail to the private respondents. In the instant case, apart from the fact that all the accused had come together to the scene of the crime, there is an additional fact in the prosecution story which, in my view, at the bail stage shows that there was prima facie pre-concert or common intention between the accused including the private respondents and as such, at this stage the private respondents can apparently be saddled with vicarious or constructive liability for the murder of deceased Rajab Ali and that additional fact is that after the incident of killing of deceased Rajab Ali by Allan and causing some injuries to the two, eye‑witnesses including the complainant Mangio by other co‑accused, the body of the deceased is alleged to have been dragged by all the accused from the place where the murder had taken place to another place i.e. house of accused Ghulamoon where one of the injured witnesses, namely, Mitho, was tied with rope to a tree. This fact apparently shows preconcert or common intention of all the accused in the murder of deceased Rajab Ali. In this context reference may also be made to a decision of the Supreme Court in the case of Iqbal v. The State 1982 S C M R 84 where the accused, had accompanied the co‑accused but who had not caused any injuries to the deceased but had only been alleged to be armed with a stick and no injury with any blunt weapon was attributed to him and yet the Supreme Court dismissed the petition for grant of leave to the applicant whose bail application had been rejected by the High Court, observing that from the F.I.R. in that case it appeared that the accused acted in preconcert and that he was also assigned active role of having taken out money from the pocket of the deceased after the victim had been shot dead at the spot by co‑accused. Bail was not granted to the accused in that case where neither any overt act was attributed nor was he armed with any deadly weapon having only a stick with him which was not even used and the only act attributed to him was that he had taken out money from the pocket of the deceased after he had been shot dead by co‑accused. In those circumstances, the Supreme Court was of the view that this was a case where the petitioner had been assigned active role and therefore, he acted in preconcert with co‑accused.?????? In the facts and circumstances of this case, prima facie section 34, P.P.C. was attracted and no case had been made out for grant of bail to the private respondents. Criminal Miscellaneous Application No. 648/86, is therefore, allowed and the bail granted to respondents Bachayo son of Guloa and Ghulamoon son of Muqeem by order, dated 8‑9‑1986 of the learned Additional Sessions Judge, Badin is hereby recalled. The two private respondents are directed to surrender before the trial Court forthwith failing which the trial Court may issue non‑bailable warrants for taking them into custody. S.A./M‑321/K???????????????????????????????????????????????????????????????????????????????????? Bail cancelled.