BATI KHAN Versus GULZAR

ORDER

1. JAVID IQBAL, J .--This petition for leave to appeal has been filed by Bati Khan complainant-petitioner against respondents Nos. 1 to 5 for the cancellation of their bail allowed by learned Single Judge of the Lahore High Court, Lahore.

2. The respondents alongwith six others are involved in a case under section 302/307/148/149, P.P.C. registered against them on 12th January, 1987 at Police Station Malakwal, District Gujrat wherein Khizar Hayat had been murdered and Umar Hayat received gun shot injuries. According to the medical evidence the deceased died of gun shot wounds and Umar Hayat had also suffered fire-arm injuries. There is a long standing previous enmity between the complainant and the accused sides. According to the prosecution version on the fateful day the deceased and Umar Hayat were returning home arid when they reached near the house of one Mirza Kumhar the present respondents alongwith their six companions all armed with automatic weapons suddenly confronted them and opened fire at them. The shot fired by Lala co-accused (not respondent before us) hit the deceased and it proved fatal. Umar Hayat was allegedly fired at by Abbas and Nawaz co-accused (not respondents before us). In other words Lala, Abbas and Nawaz co-accused who had fired effective shots in this case are not respondents before us and they had not been released on bail. Another co-accused by the name of Sajjan was declared innocent in the course of investigation and placed in column No.2. He is also not respondent in this case before us. The part ascribed to the aforesaid respondents is of ineffective firing. No weapon had been recovered from Aslam, Shafaqat and Akbar respondents. However, a licensed rifle and a gun were recovered from Gulzar and Anwar respondents respectively, but there was no empty picked up from the spot in this case. No one was hit with the firing of the aforesaid respondents and prima facie weapons recovered from them were not even proved to have been used. It was in this background that the said respondents were granted bail on the ground that the matter of their guilt was of further inquiry.

3. Learned counsel for the petitioner argued before us that the present respondents alongwith six other co-accused had been named in the F.I.R. and since section 149, P.P.C. had been made applicable, they were vicariously liable even if due to their firing no one wag hit. We have carefully considered the arguments of the learned counsel but in our view there is no perversity in the order allowing bail to the respondents and consequently it is not a fit case for interference.

4. The petition is, therefore, dismissed.

5. M.I./B-22/S Petition dismissed.