Vicarious liability

Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, rioting, rioting armed with deadly weapon, unlawful assembly

Appreciation of evidence

Common intention

Vicarious liability

Scope

Accused were charged for committing murder of the nephew of complainant by firing

Trial Court convicted the present accused merely on the basis of surmises, conjectures, and probabilities

To attract the provision of S.34, P.P.C., there must be some proof of an overt act on the part of each accused in furtherance of the common intention

Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with the co-accused, who committed the offence, might not be sufficient to connect the former with vicarious liability

Principle of vicarious liability cannot be invoked unless and until common intention and object are proved

For that purpose, strong circumstances must exist to manufacture a common intention, which was missing in the present case

Prosecution had failed to establish the common intention and common object of the accused for the commission of the crime, and no corroborative evidence was produced by the prosecution with the statement of eye-witness

Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt

Appeal against conviction was accordingly allowed.

Section 34, P.P.C., lays down the principle of constructive liability whereby if several persons unite with a common purpose to do any criminal offence, all those who assist in completing their object would be equally guilty

Foundation for constructive liability is the common intention in meeting the accused to do the criminal act and doing such act in furtherance of common intention to commit the offence

In order to constitute an offence under S.34, P.P.C., it is not required that a person should necessarily perform any act by his own hand; rather, the common intention pre-supposes prior concert and requires a pre-arranged plan

If several persons have the common intention of doing a particular criminal act and if, in furtherance of their common intention, all of them join together and aide or abett each other in the commission of an act, then one out of them cannot actually with his own hand do the act, but if he helps by his presence or by some other act in the commission of an act, he would be held to have himself done that act within the meaning of S.34, P.P.C.

White convicting an accused for sharing common intention, extra ordinary circumstances, and confidence-inspiring evidence, is needed.

Accused was charged for making murderous assault by making firing upon the brother of complainant due to which he sustained firearm injuries

Record showed that two accused were charged for causing injuries to the injured, one with effective fire shots, whereas the other with the role of facilitation

Admittedly, the accused was the real brother of absconding co-accused

According to the version of the prosecution, the accused had entered the shop and called the injured to come out, and outside the shop, the absconding accused was standing armed with a pistol and made fire upon the injured

Moot question was that whether entry of the accused into the shop in the company of his co-accused in the mode and manner as reflected from the evidence was sufficient to establish that he was sharing his intention with the co-accused for attempting to commit murder of injured

No evidence was on record was to suggest any previous bitterness of serious nature between the parties prior to the occurrence; therefore, in view of their close relationship with each other, mere joint entry of the accused in the shop could not be viewed with suspicion that there was pre-concert or pre-arrangement between them for the commission of the offence

No evidence was on record to prove that any pre-consultation or pre-planning had taken place between both the accused before the occurrence, nor the said elements could be inferred from the surrounding facts of the case

Admitted fact that the accused did not have any pistol at the time of the occurrence

Accused being empty handed at the relevant time suggested that neither any pre-planning had taken place between both the accused before the occurrence nor did the accused have the knowledge that his brother/absconding co-accused was in possession of a weapon nor did he anticipate any quarrel with the complainant side culminating in an attempt to commit murder of the injured

If the accused had any intention of fighting with the complainant, or had he apprehended the same, or if he had the knowledge that his brother was carrying a pistol with him while going to the shop, he would have also carried some weapon with him at least for his self defence

In such circumstances, the prosecution could not collect any positive evidence that could help form an opinion that the accused had shared common intention with the absconding co-accused

Circumstances established that the prosecution had failed to establish the culpability of the accused in the present case through reliable, trustworthy, and confidence-inspiring evidence

Appeal against conviction was accordingly allowed.

Accused were charged that they made firing upon the complainant party, due to which the complainant, his father and two other sustained firearm injuries, and later, the complainant died

In the case in hand appellant and his brother/dead co-accused had been charged for firing upon the complainant and three (03) injured while in the cross case FIR No. 373 the appellant had also charged the injured for firing at him and dead complainant for inflicting pistol butt blows to him on his head whereas injured persons had been charged for inflicting baton blows to dead co-accused

No doubt the dead co-accused was charged for firing at the complainant, who died after 72 days of the occurrence due to the injuries sustained at the hands of dead co-accused, while the present appellant was charged for causing injuries to two injured, however, at the same time it also had to be taken into consideration that the appellant had also received injuries in the same incident

During evidence it could not be proved that which party was the aggressor and which was aggressed upon, thus, it could not be said with certainty that the appellant had either shared his common intention with his dead co-accused or he in self defence had committed the offence

On one hand possibility of appellant arriving at the crime spot with premeditation could not be ruled out of consideration, however, at the same time gathering of the complainant party, duly armed, at the crime spot could not be brushed aside

As both the parties had dispute over the construction/paving of street and they were duly armed, and during combat both the parties had sustained injuries, and in evidence it could not be ascertained that which party was aggressor and which was aggressed upon, thus, in such a situation the appellant could not be held responsible for sharing common intention in peculiar facts and circumstances of the case

Appeal against conviction was allowed, in circumstances.

Accused were charged for committing murder of the brother of complainant and also causing firearm injuries to his other brother

Record showed that that the appellant "MA" to whom admittedly neither any overt act nor any firearm injury either to the deceased or injured was attributed, was convicted and sentenced by the Trial Court for sharing 'common intention' with the principal accused

Ordinarily, every accused was individually responsible for a criminal act done by him

No one could be held responsible for an independent act or wrong committed by another

In the crime report, the complainant did not utter even a single word qua prior concert or pre-arranged plan between the appellants to kill the deceased

Even both the acclaimed eye-witnesses while appearing in the dock in the Court room did not make even slight indication that there was a plan or meeting of mind of both the appellants to commit the murder of deceased which was sine qua non for attracting the provisions of S.34, P.P.C

Both the witnesses simply stated that at the time of crime, appellant while armed with firearm was accompanying the principal accused

Mere presence of the appellant with the principal accused in the absence of any pre-arranged plan between them was not sufficient to hold him guilty of vicarious liability

Entire prosecution evidence was silent qua the relationship of the appellant with the principal accused

Neither the motive part of occurrence had any relevance with the appellant nor there was any iota of material from which it could be inferred that the appellant had any animosity with the complainant party

In the absence of any evidence that intention of principal accused to kill the deceased was in the knowledge of the appellant, he could not be held guilty of vicarious liability

Thus, the prosecution had failed to prove the charge against the appellant for sharing common intention with the principal accused, as such his conviction and sentence on that basis could not be allowed to hold the field

Appeal against the said accused "MA" was allowed, in circumstances.

Attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, using criminal force or assault on public servant while he was performing his duty, common intention, act of terrorism

Appreciation of evidence

Vicarious liability

Applicability

Accused were charged for snatching motorcycle from the complainant; meanwhile four Police Officials arrived there on motorcycles, who signaled the accused to stop, but they opened fire on them with intention to kill them and deter them from discharging their duty causing firearm injury to a Police Constable; in retaliation one accused received bullet injuries and he fell down and was apprehended by the police

In the present case, there was exchange of fire/shots, however, it was not possible to exactly point out that fire shot from which of the accused hit the injured/Police Constable

Section 34, P.P.C., provided that where a criminal act was done by several persons in furtherance of the common intention of all, each of such persons were liable for that act in the same manner as if it was done by him alone

Appeal against conviction was dismissed, in circumstances.

Mere presence of a person with principal accused at the scene of occurrence would not make him liable for the act of principal accused, but when his presence is not that of a spectator rather is coupled by some overt act which facilitated a principal accused to commit as offence, then it would be safe to fix joint liability on such person as well.

Qatl-i-amd, attempt to commit qatl-i-amd, common intention, rioting, rioting armed with deadly weapons, unlawful assembly

Appreciation of evidence

Vicarious liability

Accused were charged for making firing upon the sons of complainant, due to which one son of complainant died whereas two sustained fire arm injuries

Complainant stated that on the day of incident, hot words were exchanged between his son and the principal accused as, his brother was reluctant to pay the price due in respect of a common land sold by him; that said altercation prompted the accused, who armed with weapon, lathis daggers and caused fatal injuries to his sons

If the statement of the complainant was judged with reference to the proposition of common object, then it would mean that the said altercation that occurred between the principal accused and son of the complainant, instigated the accused party, which assembled and made murderous assault upon the complainant's party

Complainant in his report and Court's statement mentioned that because of such altercation and exchange of hot words, the accused party assaulted upon his house

In his report, the complainant had mentioned that the altercation took place on the day of incident

Thus, the Court inferred that the accused party had no pre-arranged plan and shared common intention for commission of the assigned criminal act on the day of incident

Therefore, provisions of S.34, P.P.C, did not apply in the instant case

Circumstances established that the prosecution had failed to substantiate accusation against the accused persons without shadow of reasonable doubt

Appeal against conviction was accordingly allowed.

Accused were charged that they in furtherance of their common intention committed murder of the deceased who was accompanying the complainant

Parties were known to each other being neighbours as was admitted by both the accused persons in their statements before the Trial Court

Accused had fired from his pistol, twice, as was evident from the Forensic Science Laboratory Report and the other accused was present at the place of incident, duly armed with his licensed pistol too

Presence of second accused at the place of incident had been proven beyond reasonable doubt and all the witnesses had deposed that the second accused too had fired from his pistol and despite a volley of contrary suggestions during cross-examination, the three eye-witnesses remained firm on their stance

Thus, even though shots fired by second accused did not hit the deceased, his presence at the place of incident while being armed with a pistol made him vicariously liable for the offence committed and he too had shared common intention to take the life of the deceased

Circumstances established that the prosecution had proved its case against the accused persons

Appeal against conviction was dismissed accordingly.

First consideration that the courts have to look at when deciding whether an entity/organization is vicariously liable for breaches in tort committed by its employees is whether or not a tortious breach has actually been committed in the first place

Next consideration would be whether or not the tortious acts had been committed by an employee of an organisation during the course of his employment

Final consideration would be whether it would be fair, just and reasonable to hold an organisation/entity vicariously liable for the actions of its employees during the course of their employment which resulted in tortious acts.

State Corporation cannot claim that it cannot be sued vicariously for the actions of its employees by invoking sovereign immunity

Even otherwise, the defence of sovereign immunity and its application in Pakistan has been done away with by the Supreme Court in the case reported as Pakistan through Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat (PLD 1962 SC 28).

State Corporation cannot claim that it cannot be sued vicariously for the actions of its employees by invoking sovereign immunity

Even otherwise, the defence of sovereign immunity and its application in Pakistan has been done away with by the Supreme Court in the case reported as Pakistan through Secretary to the Government of Pakistan, Ministry of Railways and Communications, Karachi v. Muhammad A. Hayat (PLD 1962 SC 28).

First consideration that the courts have to look at when deciding whether an entity/organization is vicariously liable for breaches in tort committed by its employees is whether or not a tortious breach has actually been committed in the first place

Next consideration would be whether or not the tortious acts had been committed by an employee of an organisation during the course of his employment

Final consideration would be whether it would be fair, just and reasonable to hold an organisation/entity vicariously liable for the actions of its employees during the course of their employment which resulted in tortious acts.

Qatl-i-amd, robbery, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, abetment, harbouring offender, common intention

Appreciation of evidence

Vicarious liability

Scope

Accused were charged for entering into the house of complainant, committing murder of cousin sister of complainant and causing injuries to her four years old baby and also taken away one laptop, mobile phone and Mema watch from the house of complainant

Accused had shared the common intention with other accused

Though the accused had not taken part in firing upon deceased or injuring baby girl, but the killing had been made during the course of robbery in furtherance of the common intention of the other accused, hence the accused had rightly been held vicariously liable for the murder of deceased by the trial Court and his conviction under S. 302(b), P.P.C., was not open to any exception

Circumstances established that the prosecution had succeeded in proving its case against the accused persons

Appeal against conviction was dismissed accordingly.

Qatl-i-amd, attempt to commit qatl-i-amd, punishment for other hurt, hurt by rash or negligent act, mischief causing damage to the amount of fifty rupees, rioting, armed with deadly weapon, common object

Bail, refusal of

Vicarious liability

Delayed FIR

Scope

Name of accused appeared in the FIR with specific role as he was complained to have been armed with a Kalashnikov and fired at deceased which hit him on left elbow

Accused had actively participated in the commission of the offence

Principle of vicarious liability was attracted to the case of accused

Complainant had alleged the motive that his brother (deceased) had contracted marriage with sister of accused on which he had issued threats to commit murder

Medical officer had found the injury, attributed to the accused, fatal in nature

Delay had been duly explained in the FIR which was that the complainant had taken the dead body to the police station, postmortem was conducted, funeral rites were conducted and then he had appeared at police station for getting the FIR lodged

Prosecution witnesses in their statements under S. 161, Cr.P.C., had supported the version of FIR

Offence with which the accused had been charged entailed capital punishment, as such, fell within the prohibitory clause of S. 497(2), Cr.P.C.

Bail application was dismissed, in circumstances.

Employer is always vicariously liable for acts of its employees performed in the course of duties.

Co-accused persons had committed the murder of a person by causing him pistol fire shot, hatchet and spade injuries on his face

Role attributed against the accused was that he was present at the scene of occurrence having lathi in his hand but he had not used the same in the commission of alleged offence

Accused was not alleged to have caused any injury either to the deceased or to the complainant party

At the most his case fell under the scope of vicarious liability

Another accused whose case was at par with that of the accused had been granted bail by the High Court

Case against accused called for further inquiry in terms of subsection (2) of S. 497, Cr.P.C.

Petition for grant of bail was allowed, in circumstances.

Qatl-i-amd, abettor present when offence committed, wrongful confinement, criminal intimidation, hurt by rash or negligent act, common intention

Bail, grant of

Old age of accused

Vicarious liability

Scope

Allegation against accused was that he instigated the accused persons to commit murder of the victim

Prima facie no evidence was available on record of conspiracy, previous meeting of minds and joining of hands together by the accused with the main accused to take life of the victim

Accused had admittedly caused no injury on the person of the deceased

No role was attributed to him except the alleged instigation and forcing family members to be inside the room

Vicarious liability of the accused would be determined by the Trial Court after recording evidence

Accused was suffering from various ailments including renal failure

Accused was an old man aged 81 years

No incriminating material was recovered from the possession of the accused during the course of investigation

Record did not reflect that the accused overacted in the alleged incident

Accused had made out a case of post arrest bail

Bail application was allowed, in circumstances.

Prosecution case was that the accused assaulted on the complainant party, due to which brother of complainant died while his nephew and cousin received bullet and butt injuries

Accused was charged for sharing common intention with the absconding accused in the commission of the offence

Witnesses had not assigned accused any overt act

No evidence with regard to participation of accused in crime was available on the record

Section 34, P.P.C. was neither punitive nor did enact a rule of evidence, but related to joint liability

Mere presence on spot ipso facto was not sufficient to hold a person vicariously liable

Prosecution must prove that the offence was committed in pre-arranged plan

Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt

Appeal against conviction was allowed, in circumstances.

Accused was charged that he along with co-accused persons committed murder of the son of complainant and also caused injuries to his relative

Role and participation of the accused according to the prosecution story was an attempt to fire at the injured with the firearm weapon he was carrying and when it misfired, hit the latter with its butt

No allegation that the accused had made an attempt to harm the deceased

Prosecution was also not able to prove beyond a reasonable doubt that the injury on the forehead of the injured had been caused by hitting him with the butt of a firearm weapon

According to the testimony of Investigating Officer, when the firearm weapon was recovered it was rusted and not in working condition

Accused had neither come to the crime scene with the common intention to kill the deceased nor did the facts and circumstances raise an inference of an intent to commit the crime of taking an innocent life in furtherance of common intention

Prosecution was not even successful in establishing beyond a reasonable doubt the exact location of the crime scene and the presence of injured when the offence was committed

Conviction on the basis of acts done in furtherance of common intention was not sustainable

Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt

Appeal against conviction was allowed, in circumstances.

Undertakings in the market should be vigilant and considerate of their distributors or employees acting on their behalf, they cannot be allowed to resort to any sort of argument which shifts their burden on others and help them to get away

Undertakings must ensure proper training and procedures for their employees and distributors in order to make them aware of what may constitute violation of competition laws and that distributors or employees do not transgress from their domains.

Prosecution case was that the accused persons attacked on complainant with dandas, due to which he received injuries on his head, wife of the complainant came after him to rescue, but co-accused made fire which hit his wife and she succumbed of the injuries

Admittedly, accused were present at the time of occurrence along with absconding accused

Injured witness and ocular witness categorically stated in their statements that fire was made by absconding co-accused

Admittedly, accused had not caused any injury to deceased

Role ascribed to the accused was that they assaulted on complainant with sticks, due to which, he sustained lacerated wounds

Not necessary that joint action by number of persons might be with common object

Mere presence of an accused at the venue of occurrence with co-accused might not be sufficient for vicarious liability

Common intention was to be inferred from the entire conduct of the accused

Evidence on the record was not sufficient to come to a conclusion that the accused had at any stage common intention with the principal accused to commit murder

In absence of evidence of common intention the accused would be liable for their individual act which they committed in the episode

Prosecution had not been able to prove beyond shadow of doubt the common intention of accused along with absconding co-accused to commit murder of deceased in furtherance of pre-planned design

Appeal against conviction was disposed of with modification in sentence.

Mere presence of the acquittal accused with the co-accused at the place of occurrence would not be sufficient to visit the former with vicarious liability.

Record showed that the eye-witness did not attribute the role of firing to the co-accused, however, he stated that the co-accused was armed with T.T pistol and told them not to resist or they would be killed

Co-accused, however, was armed with deadly weapon, i.e. firearms, which depicted common intentions and prior concert of mind being a facilitator and abettor of the accused and he remained present at the place of occurrence till the task, i.e. murder of the deceased was accomplished

Said role of co-accused could not be confined to that of facilitator

Appeal was dismissed accordingly.

Question of vicarious liability is always to be seen by the Trial Court.

Accused was charged for committing murder of mother and sister-in-law of the complainant on the instigation of co-accused

No doubt, it was the allegation against the accused that they had acted in prosecution of their common intention, however, it was the case of prosecution that the occurrence had taken place over trespassing the goats of accused into the maize crop of the complainant

Apparently, the occurrence had taken place at spur of the moment and there was no past blood feud between the parties to suggest that the accused had attacked the ladies after pre planning, therefore, the provision under S.34, P.P.C. was not attracted to the case

Appeal against conviction was allowed, in circumstances.

Test which generally applied in deciding whether an employer was vicariously liable for the wrongful conduct of one of its employees was that the wrongful conduct was so closely connected with acts that the employee was authorised to do, that, for the purposes of liability of the employer to third parties, it could fairly and properly be regarded as having been done by the employee while acting in the course of his employment

In cases where employees intentionally inflicted harm for their personal reasons, using opportunities available to them due to their employment, the general rule was that the employer was not vicariously liable, because the employee did not commit the wrong whilst engaged in his employer's business, but while engaged in an independent personal venture.

Person could be held vicariously liable for the wrongful acts of someone who was not their employee if the relationship between them was sufficiently akin to employment to make it fair, just and reasonable to impose such liability

However, such liability would not arise if the person who committed the wrongdoing had been carrying on business on his own account.

Question of vicarious liability is to be determined at the time of trial and not at the time of bail.

To determine whether such social workers, in addition, also owed a similar duty to the claimants (persons they provided services to) depended on whether they assumed a responsibility towards such claimants to perform their functions with reasonable care

Concept of an assumption of responsibility was not confined to the provision of information or advice; it could also apply where, a claimant entrusted the defendant with the conduct of his affairs, in general or in particular

Such situations could arise where the defendant undertook the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care would be taken

Such an undertaking may be express, but was more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care.

Local housing authority in question provided a mother and her two children ('the claimants') with accommodation owned by a third party

Claimants were subjected to harassment, abuse and anti-social behaviour from a neighbor at the accommodation provided

Claimants claimed damages against the local housing authority for its negligence and contended that if the local authority had carried out its duties under the Children Act, 1989 (United Kingdom) competently, it would either have moved the family as a whole or moved the claimants out of the home

Question as to whether the local authority owed common law duty of care to the children to protect them from the physical and psychological damage caused by a third party

Held, that the basic premise for determining the existence or non-existence of a duty of care on the part of a public authority was that public authorities were generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation required a departure from those principles

Public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and was therefore excluded by, the legislation from which their powers or duties were derived

Public authorities did not owe a duty of care at common law merely because they had statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm

Public authorities could come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority had created the source of danger or had assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation

In the present case, when the local authority had investigated and monitored the claimants' position, it had not been involved in the provision of a service to the claimants and their mother on which they could be expected to rely

Nor could it be said that the claimants and their mother had entrusted their safety to the local authority, or that it had accepted that responsibility

Nor had the local authority taken the claimants into its care, and thereby assumed responsibility for their welfare

Nature of the statutory functions of the local authority relied on in the particulars of claim did not in itself entail that the local authority assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care

Of course, it was possible that even where no such assumption could be inferred from the nature of the function itself, it could nevertheless be inferred from the manner in which the public authority had behaved towards the claimant in a particular case

In the present case, however, the particulars of claim did not provide a basis for leading evidence about any particular behaviour by the local authority towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred

Nature of the statutory functions [under the Children Act 1989 (United Kingdom)] on which the claimants relied in their particulars of claim did not in itself entail that the local authority had assumed or undertaken a responsibility to perform those functions with reasonable care or that its employees had assumed a responsibility towards the claimants to perform their functions with reasonable care so as to make the local authority vicariously liable for any negligence by its employees

No basis was found for the breach of duty alleged in the particulars of claim by the local authority's failure to remove the claimants from their mother's home since the harm suffered by the claimants was not attributable to lack of reasonable parental care

Particulars of claim did not disclose any recognisable basis for a cause of action against the local authority, and, accordingly, the claim should not proceed to trial.

Qatl-i-amd, when waived/compounded, a rash or negligent act to endanger human life or personal safety of others, house trespass in order to the commission of an offence punishable with death, common intention

Bail, grant of

Vicarious liability

Scope

Witness involved the accused through further statement

Effect

Four accused (including one unknown) allegedly armed with pistols, surrounded the cot of the brother of complainant and main accused made straight fire shot on the deceased while the rest pointed their pistols towards the complainant and witnesses were directed not to come near, otherwise they would be killed

Complainant contended that petitioners (two in number) shared vicarious liability with the main accused in murdering his brother, who contracted court marriage with the lady hailing from accused side

Record revealed that one petitioner was nominated in the FIR whereas, the name of the other petitioner did not appear in the FIR, and had been implicated on the basis of subsequent statement of the complainant recorded under S.162, Cr.P.C.

No active role against the petitioners (said accused) was alleged in the FIR and only their presence was alleged

Sharing vicarious liability with the main accused by the petitioners, prima facie, could be determined during the trial

FIR was lodged with the delay of 21 hours without plausible explanation

After one day of lodging of the FIR, witnesses implicated the unknown accused with specific role of firing and in statement recorded under S. 162, Cr.P.C, the complainant disclosed the name of said (unknown ) accused without an active role, hence the FIR and statements of the witnesses had contradicted each other

Mere involvement of the accused in the offence punishable with capital punishment, falling within ambit of prohibitory clause under S. 497(1), Cr.P.C, did not exclude the accused from benefit of bail until and unless sufficient grounds appeared to establish his connection with the commission of offence

Investigating agency had not found any material against the petitioner against whom active role of firing was assigned and his name was kept in Column-II

Motive of the murder, as per complainant, was contracting of court marriage of the deceased with the lady but the complainant had not alleged anywhere the anger of the petitioners, as such, prima facie, S. 311, P.P.C. did not attract against the petitioners

No fruitful purpose would be served to keep the petitioners in jail for uncertain period as bail could not be withheld as punishment

Improved version as to witnessing the incident in the supplementary statement appeared to be well thought and deliberate move on the part of the complainant to fill in the gaps of the present case

Case of the petitioners called for further inquiry into their guilt as envisaged under S.497(2), Cr.P.C

Petitioners were admitted to bail, in circumstances.

Qatl-i-amd, hurt, harsh or negligent act to endanger human life or personal safety of others, rioting, armed with deadly weapon, unlawful assembly

Bail, grant of

Vicarious liability

Scope

No active role was attributed to present petitioners

Complainant apprehended absconsion of the petitioners if concession of bail was to be granted to them as one co-accused had already absconded

Validity

Petitioners were charged with offence punishable with capital punishment

Bail could not be granted to the petitioners when sufficient grounds appeared to establish their connection with the commission of offence

No active role was attributed to the petitioners , prima facie their vicarious liability with the main accused was the question, which could be determined by the Trial Court

Absconsion of co-accused did not prohibit the petitioners for the concession of bail

Place of occurrence, as stated in the FIR, was a public place but no indepenedant witness had been cited despite the fact that the parties were, admittedly, on inimical terms

Delay of eleven hours in lodging of FIR without plausible explaination

Alleged injuries to the witnessess were not punishable with capital punishment and did not come within the prohibitory clause of 497(1), Cr.P.C

Petitioners were behind the bars since their arrest and no fruitful purpose would be served to keep them in jail for an uncertain period

Petitioners were granted bail, in circumstances.

Petitioner along with co-accused allegedly, in a daylight occurrence, had severely thrashed the deceased with hatchet blows

Petitioner contended that his case fell under ambit of further inquiry as at the time of occurrence, he was present at his office situated 25 Kilometers away from the place of occurrence and for that effect he had also produced a certificate

Complainant contended that said certificate, showing presence of the petitioner at his office, was issued about nine months after the incident

Validity

Eye-witnesses had recorded their statements before the Magistrate under S. 164, Cr.P.C. and they all had supported the prosecution version in all respect of mode, manner and the number of the assailants

Role of each accused, in such like cases, could not be segregated for the purpose of conviction and sentence

Since each one of the unlawful assembly had actively participated in the crime in prosecution of their common object, so they all were burdened with constructive liability

Petitioner could not be released on bail merely on the ground of further inquiry, for almost every criminal case, in normal course, was of further inquiry

Petitioner had not offered any explanation for his noticeable absondence, much less plausible

Certificate submitted by the petitioner in support of his plea of alibi, did not show the presence of the petitioner with specific time in his office

Distance between the place of occurrence and the said office was 22 Kilometers which was so short from which it could be presumed that the petitioner could easily attend his office after or even before the commission of the alleged crime

Challan had been submitted in the Court and trial was to commence, so when the case was fixed for the evidence, bail petition should not be decided, merits and the matter be left to the discretion of the Trial Court, as the same could prejudice the case of either side

Bail was refused to the petitioner, in circumstances.

Qatl-i-amd, attempt to commit qatl-i-amd, assault on public servant, rioting armed with deadly weapon, unlawful assembly, act of terrorism

Bail, grant of

Further inquiry

Vicarious liability

Rule of consistency

Applicability

Dying declaration

Scope

Complainant (police official) while patrolling with other police official stopped a suspicious vehicle

Petitioner, along with four accused, alighted from the vehicle and main accused made firing on complainants companion (Police official) who sustained injuries and later died

Petitioner contended that his case fell under further inquiry as bail had already been granted to one of the co-accused with almost similar attribution

Petitioner was behind the bars for the last two years

Petitioner though had been nominated in the FIR but neither any specific role nor any overt act had been attributed to him except that he, having a pistol, alighted from the vehicle along with the main accused (who made straight fire on the deceased)

Soon after the alleged incident, injured police official was taken to the hospital where SHO concerned, in the presence of medical executive recorded his dying declaration, wherein he categorically stated that main accused had fired at him directly and even had not taken the name of the petitioner

Question of vicarious liability of the petitioner with regard to his common intention for committing alleged offence would be determined at the trial

Tentative assessment of record called the case of the petitioner as one of further inquiry as envisaged under S. 497(2), Cr.P.C.

Record revealed that another co-accused had been admitted to bail; said co-accused was identified by the witnesses during the identification parade and Kalashinkov was allegedly recovered from his possession

Case of the petitioner was at par with the said co-accused therefore, principle of consistency also applied in the case of petitioner, which demanded equal treatment to the petitioner

Bail was granted to the petitioner, in circumstances.

Qatl-i-amd, attempt to commit qatl-i-amd, abetment of any offence, if abettor present when offence committed, common intention

Bail, refusal of

Vicarious liability

Scope

Victims, after release from jail, boarded in a taxi, were assaulted while on the way to their home by blocking the road

Petitioner/accused contended that neither he was nominated in the FIR nor any ocular evidence regarding his involvement in the occurrence was available

Prosecution contended that petitioner was wandering around the premises of the jail throughout the day and keeping an eye over release of the victims

Petitioner was though not charged in the FIR but there was mention of some muffled person involved in the commission of the offence along with co-accused

Petitioner was arrested during investigation of the case and final police report showed that he was on surveillance of the victims and after their release from jail he not only followed them but also got boarded another accused on his motorbike

Said accused was among the other accused who allegedly committed the murder of the deceased and seriously injured the other victim

Record revealed that offence was committed in a pre-planned and pre-mediated manner in which the petitioner was an active participant who facilitated the main accused in committing the offence

Provisions of S. 34, P.P.C. were, prima facie, attracted in the present case

Bail was refused to the petitioner, in circumstances.

Petitioner was arrested by National Accountability Bureau for holding assets in his name which were purchased by his father who was principal accused in the reference

Validity

Principal accused accumulated numerous assets which he could not account for through his known sources of income who malafidely and fraudulently held some of the properties in name of petitioner and another person as Benamidars

Prima facie petitioner was not involved directly in all the transactions and his vicarious liability was to be determined by Trial Court after recording of evidence

Case of petitioner required further inquiry in terms of S. 497(2), Cr.P.C.

Bail was allowed in circumstances.

Record revealed that although the accused persons were nominated in FIR , however, no injury on the person of the deceased was attributed to them and they had been assigned the role of causing injuries on the heads of injured ladies falling under S. 337-A(ii), P.P.C.

Vicarious liability of accused persons as well as sharing the common intention with co-accused for committing murder of deceased would be determined by the Trial Court after recording evidence

Case of accused persons called for further inquiry into their guilt as envisaged under S.497(2) of Cr.P.C

Accused persons were admitted to bail, in circumstances.

Vicarious liability or sharing common intention in the commission of offence would be determined by Trial Court after recording evidence.

Accused was nominated through supplementary statement wherein he was given the role that he was driving the motorcycle and his co-accused, who was sitting behind him, made fire shot which hit deceased on his right eye

Record revealed that accused had not caused any injury to the deceased, hence, the question of vicarious liability of the accused or sharing common intention by him with his co-accused for committing murder of the deceased would be determined by the Trial Court after recording evidence

Accused was, admittedly, previous non-convict who was behind the bars since long whereas investigation of the case was complete and accused was no more required for further investigation

Case of the accused became one of further inquiry as envisaged under subsection (2) of S.497, Cr.P.C

Accused was admitted to bail, in the circumstances.

Record revealed that fatal injuries were attributed to co-accused persons, therefore, culpability of the accused for causing death of deceased along with co-accused persons would be determined by Trial Court after recording evidence

Accused was non-convict and was behind the bars while period of four and half years had elapsed but his trial had not been concluded as yet, so he could not be kept in jail for indefinite period

Mere heinousness of offence or commencement of trial was no ground to refuse bail which could be granted at any stage if otherwise the accused became entitled to the concession of bail under subsection (4) of S.497, Cr.P.C.

Case of the accused was that of further inquiry as envisaged under subsection (2) of 497, Cr.P.C.

Accused was admitted to bail, in the circumstances.

No specific role had been ascribed to the accused and general allegations that he and the co-accused had committed murder of the deceased were levelled

Record revealed that specific role of causing firearm injury to the deceased had been attributed to co-accused persons while the role of causing injury to the injured and complainant had been attributed to other co-accused

Vicarious liability or sharing common intention by him with co-accused persons for committing murder of the deceased would be determined by the Trial Court after recording evidence, therefore, case of the accused called for further inquiry as envisaged under S. 497(2), Cr.P.C.

Accused was admitted to bail, in circumstances.

Written statement filed by the police officials had lost its evidentiary value as contents whereof were never proved in the evidence

Deceased died while he was in the custody of police officials

Plaintiff was to prove the factum of incident only

Burden would shift on the police officials to disprove the causation if they wanted to succeed in the claim against the plaintiff

Present case did fall within the purview of Fatal Accidents Act, 1855

Prosecution in a criminal case was to prove beyond reasonable doubt the guilt of accused but in civil proceedings the matter had to be decided on the basis of preponderance of probabilities

Acquittal of (private) defendants in the criminal case did not have any adverse bearing on the present lis

Police official were liable to compensate the plaintiff by applying the rule of vicarious liability

Where damages were sought for the personalized acts of defendants, the proceedings would abate on the death of defendants

Deceased had not died a natural death but same was caused by the wrongful acts of police officials (defendants)

Pleadings of plaintiff with regard to deceased's life expectancy, running of business, monthly earning and other credentials had neither been questioned nor rebutted in the evidence

Plaintiff was never cross-examined in the present case

Plaintiff had claimed Rs.50,00,000/- towards damages and compensation

Claim of plaintiff with regard to quantum of damages was also unchallenged

Life expectancy of seventy five years in plaintiff's family had been proved

Deceased might also have lived for another fifty years approximately

Claim of awarding damages of Rs.50,00,000/- was justified

Master/employer in the claims with regard to tortuous liabilities would be liable for the wrongful acts of his employees/servants

Provincial Government and Inspector General of Police were liable to compensate the plaintiff besides other defendants

Defendants (Police officials) were liable to pay the damages/compensation of Rs.50,00,000/- together with 10% markup from the date of institution of suit till realization of the amount to the plaintiff and his wife i.e. parent of the deceased jointly and severally

Once Provincial Government and police officials (defendants) had acquired knowledge with regard to the incident, they should have compensated the family of the deceased

High Court observed that State should dispense justice

Public functionaries had failed to discharge their function in accordance with the constitutional mandate

Suit was decreed against the defendants jointly and severally in circumstances.

Accused was allegedly armed with gun but neither caused any injury to deceased nor made any fire from his weapon during the incident

Question with regard to vicarious liability of the accused was yet to be determined by the Trial Court after proper appreciation of evidence

Accused was no more required for investigation

Accused person had been regularly appearing in the Court without any substantial progress in the trial

Nothing had been recovered from the possession of accused

Out of 40 accused persons, 18 accused persons had already been granted bail by the Trial Court and case of the present accused was on better footing than of those who had been admitted to bail

Ad interim bail already granted to the accused was confirmed, in circumstances.

Accused persons could be burdened for vicarious liability in circumstances.

Vicarious liability in the commission of alleged occurrence and sharing common intention with co-accused shall be determined by Trial Court after recording of evidence.

Vicarious liability in the commission of alleged occurrence and sharing common intention with co-accused was to be determined by Trial Court after recording of evidence

Such liability was not relevant at bail stage.

Relationship other than one of employment was in principle capable of giving rise to vicarious liability where harm was wrongfully done by an individual who carried on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act was a risk created by the defendant by assigning those activities to the individual in question.

Claimant, who worked for the prison service (an executive agency of the Ministry of Justice) provided catering services to a prison

Claimant suffered an injury due to negligence of a prisoner

Whether prison service vicariously liable for prisoner's negligence

Case of Various Claimants v Catholic Child Welfare Society 2013 SCMR 787, laid down five factors to consider whether a relationship other than one of employment could give rise to vicarious liability; first, the defendant was more likely to have the means to compensate the victim than the tortfeasor; second, the tort would have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant; third, the tortfeasor's activity was likely to be part of the business activity of the defendant; fourth, the defendant, by employing the tortfeasor to carry on the activity, would have created the risk of the tort committed by the tortfeasor, and fifth, the employee would, to a greater or lesser degree, have been under the control of the employer

First and fifth factors were not as significant as the other three inter-related factors

Relationship other than one of employment was in principle capable of giving rise to vicarious liability where harm was wrongfully done by an individual who carried on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act was a risk created by the defendant by assigning those activities to the individual in question

Defendant need not be carrying on activities of a commercial nature and the benefit which it derived from the tortfeasor's activities need not take the form of a profit

Furthermore payment of a wage was not essential for imposing vicarious liability

In the present case, the prisoners were integrated into the operation of the prison so that that the activities assigned to them formed an integral part of the activities which the prison carried on in the furtherance of its aims i.e. in providing meals to its prisoners

Prisoners were placed in a position where there was a risk of them committing a variety of negligent acts and the work was done under the direction of prison staff

Claimant had been injured as a result of the negligence of a prisoner working in the kitchen carrying on the activities assigned to him

Five requirements for vicarious liability set out in Various Claimants v Catholic Child Welfare Society 2013 SCMR 787, were met in the present case and since the imposition of such liability was fair, reasonable and just, the prison service was vicariously liable for the claimant's injuries.

Historic origins and development of principle of vicarious liability traced through case-law.