ABDUL KHALIQ vs NIAZ KHAN and 4 others

ORDER

' Abdul Khaliq, petitioner/complainant has filed the present petition under section 497(5), Cr.P.C. For the cancellation of bail granted to the respondents, namely, Niaz Khan, Ashfaq Khan, Liaqat Ali and Abdul Sattar granted by the learned Additional Sessions Judge, Toba Tek Singh in case F.I.R. No,185, dated 4-6-1994 registered under section 302/324/337-A(ii)/337-F(ii)/ 148/149, P.P.C.

2. Briefly facts of the case according to the statement of the complainant, are that on 3-6-1994 at 7-00 p.m. The respondents along with Abdul Razzaq, Bashir Ahmad and Habib-ur-Rehman while armed with respective weapons after forming unlawful assembly with the common object, had attacked the petitioner's party and injured complainant's father; his two brothers and one of his relatives. The petitioner's father, Ali Ahmad died on 15-6-1994 and the other injured P.Ws. Received about 20 injuries.

3. Learned counsel for the petitioner vehemently contended that the learned Additional Sessions Judge while granting the bail failed to notice all ]!`levant circumstances of the case, misread the record and fell into error as the case against the respondent is clearly made out of vicarious liabilities as is evident from the Unal injuries received by the petitioner's side; the learned Additional Sessions Judge only relied on case 1976 PCr.LJ 1059 and did not consider the other authorities contrary to the dictum laid in supra case; also ignored the report under section 173, Cr.P.0 wherein the respondents were to be held as aggressive party; the offence committed by the respondents fall under Clause I to section 497, Cr.P.C.

4. The learned counsel for the respondents assisted by the learned State Counsel controverted the arguments of learned counsel for the petitioner and at the very outset contended that the application was dismissed for non-prosecution on 14-2-1995 and could not be restored to its original number and first application under section 497(5), Cr.P.C. Should have been moved; further contended that upon completion of investigation, a cross-version was registered wherein four persons of the petitioner/complainant party including the deceased had been challaned under section 148/149/337-A(ii), P.P.C.; 13 injuries caused by the petitioner's side to the respondents party were intentionally suppressed; the F.I.R. Was lodged with a delay of 22 hours without any plausible explanation; the order is neither perverse nor result of misreading of facts and the petitioner's side though challenged has also been granted bail. Further contended that the respondents are not alleged having caused injuries to the deceased; the injuries caused to the P.Ws. By the respondents are of simple nature and vicarious liability is not applicable.

5. The learned counsel for the petitioner in support of his contention that vicarious liability is attracted relied upon case 1979 SCM R 229, PLD 1978 SC 236, 1979 PCr.LJ 390, 1990 PCr.LJ 609, 1991 PCr.LJ 1394 and 1991 PCr.LJ Note 265 at p.187.

6. I have heard the arguments advanced by the learned counsel for the parties and have perused the record with their able assistance.

7. Admittedly according to the F.I.R. None of the respondents had inflicted injury to the deceased.

The only allegation against them is that they injured the P.Ws. Of the complainant party; the allegation is of a general nature, it is too early to say at this stage that the respondents were vicariously liable of the murder of the deceased and require further inquiry.

8. By now. It is well-settled law, that when there is a cross-version, the matter becomes one of further inquiry as observed in case Ayyub and another v. The State 1981 PCr.LJ 706 and followed. By this Court in case Criminal Miscellaneous No,3859/B of 1995; wherein it was observed that where there is material on record showing two cross-versions one by the complainant party and the other by accused party and there is prima facie probability with the counter-version has also some truth in it; at this stage it cannot be said to which side is aggressor; it is a fit case for further inquiry envisaged by subsection (2) of section 497, Cr.P.C.

9. It is also well-settled by now that discretion exercised by the trial Court in matter of bail cannot be upset unless the same is found to be highly improper C and capricious, even otherwise the case in hand had become of conflicting versions whereof the benefit is to go to the respondents party.

The respondents were granted bail on 20-10-1994; the application in hand was dismissed for non- prosecution on 14-2-1995; cancellation of bail at this stage means depriving the respondents of a valuable right which has accrued twice in their favor by the r.' orders of competent Courts while neither the order is perverse nor the Li respondents misused the concession of bail.

10. Under the circumstances, the application being without merits and is dismissed; as no order to costs due to intricacy of the point of law involved.