1979 PLP 351 (SCMR)

NASIM HASAN SHAH, J.‑--This is a petition for leave to appeal directed against the order dated 6‑3‑79 passed by a learned Judge of the Lahore High Court refusing to cancel the bail of the respondents. The facts which form the background are that Mehar Din, petitioner herein, lodged an. F. I. R. at Police Station Pattoki on 24‑9‑77 regarding an occurrence which took place on the same day within the jurisdiction of the aforesaid police station in which his son Asghar was murdered. Five persons variously armed namely Alamdar armed with a chhura, Atta Mohammad armed with chhuri, Safdar Ali armed with sota, Mumtaz Ali armed with knife and Nazar Hussain armed with a rifle, were implicated and a case was registered against them under section 302/307/148/149, P. P. E, According to the allegations in the F. I. R. Nazar Hussain had shouted a lalkara while Alamdar had inflicted a knife blow with his chhura Mumtaz Ali had inflicted two blows with his knife on the right buttock and left thigh of Asghar Ali deceased. Atta Mohammad had, however, not caused any injury to him while Safdar Ali caused a dang blow to witness Mohammad Tufail. The Sessions Judge, Kasur, enlarged Nazar Hussain (respondent No. 1 herein) on bail vide his order dated 15‑11‑

77. Thereafter, on 21‑1‑78, another Sessions Judge at Kasur granted bail also to Atta Mohammad and Safdar Ali (respondents Nos. 2 and 3 herein). Aggrieved by these orders the petitioner moved, in the High Court, Cr. Misc. No. 4735‑B/77 for cancellation of bail granted to Nazar Hussain and Cr. Misc. No. 357‑B/78) for cancellation of bail of Safdar Ali and Atta Mohammad respondents, both these petitions came up for hearing before G. M. Mirza, J. which were dismissed by him by an elaborate order passed on 1‑4‑

78. This order was not challenged any further by moving a petition for leave to appeal before this Court. However, some months later, on 25‑1‑79 a petition (Cr. Misc. No. 35018/79) for cancellation of bail of the respondents was moved in the High Court. This matter came up for hearing before the same learned Judge who had dismissed the earlier applications for cancellation of bail of the respondents. In support of this petition only two grounds appear to have been urged, namely, (i) that the respondents had been threatening the petitioner and the eye‑witnesses named in the F.I. R. and they were thereby abusing the concession of bail and (ii) Alamdar accused who was the principal accused in the case, was an absconder and he was not likely to be arrested unless the bail granted to the respondents was cancelled. The learned Judge, however, did not find any merit in any of the aforesaid two grounds. So far as, the first ground is concerned, it was observed that the affidavits filed in support thereof continued allegations of very vague and casual type and furthermore no report was lodged with the police with respect to the alleged threats hurled at the petitioner and the eye‑witnesses. Moreover, the respondents had filed counter‑affidavits denying the allegations leveled against them. So far as the second ground, namely, that Alamdar absconder could not be apprehended until the bail of the co‑accused was cancelled, is concerned, it was observed that the apprehension of the absconder was the duty of the police and the co‑accused could not suffer because the police was not performing its duties energetically in order to apprehend him. The application was accordingly rejected vide order dated 6‑3‑

79. Mr. Yusuf Ali Khan, in support of this petition for leave to appeal directed against the last mentioned order, laid great stress before us on the second contention which was raised before the High Court, namely, that Alamdar could not be apprehended unless the bail, of the co‑accused was cancelled. In this connection, it was urged that e was being harboured by the co‑accused and the only way in which he could be apprehended‑was by cancelling the bail of the co‑accused. This contention has already been considered by the High Court and rejected. We agree with the learned Judge that the co‑accused cannot be penalised on the assumption that the absconder can only be arrested if they are first arrested. No details of how they are harbouring him and preventing his arrest have been given and this bald allegation cannot be accepted at face value unless it is supported by cogent material. Indeed this should be done by bringing it to the attention of the police in the first instance. It was next contended that the presence of Safdar Ali respondent No. 3 at the spot could not be doubted and that he had taken an active part in the occurrence in that he had injured one of the P.Ws. Similarly, Atta Mohammad and Nazar Hussain were also present on the spot and even if they had not caused any injury to the deceased or the witnesses, they were vicariously liable in view of the provisions of S. 149, P. P. C. In this connection attention was drawn to Chiragh Din and others v. The State (P L D 1967 S C 340 ) and Nazar Mohammad v. The State (P L D 1978 S C 236). The above contention was also raised by the petitioner in connection with his earlier applications for cancellation of bail which were rejected by the High Court on 1‑4‑

78. Since the said order was not challenged, the contention now raised cannot be canvassed at this stage. Be that as it may, as the respondents did not allegedly take any active part resulting in the death of Asghar deceased, the Sessions Judge exercised his discretion in their favour and allowed bail which was not interfered with by the High Court. There are no compelling reasons for interference with these orders. This petition, therefore, is without force and is dismissed hereby. Petition dismissed.