2003 PLP 256 (YLR)

Date of hearing: 21st August, 2001. This application has been filed by the applicant under section .497(5), Cr.P.C. by challenging the impugned order whereby the respondents were granted bail by an order, dated 29‑9‑2001 passed by the learned Additional Sessions Judge, Kashmore. The brief facts as narrated in the F.I.R. are that complainant Mazari, his son Shahdad, nephews Nawab and Kamal live together. They are on inimical terms with accused Fakiro and others over landed property. On 7‑11‑2000 complainant party was present in their house and accused Fakiro, Shahoo, Soomro and Parial duly armed with hatchets came there, where accused Fakiro told the complainant that they have to cut wood from forest and asked him for help of .his son Shahdad. Shahdad accompanied with the Fakiro and others towards forest. At about 4‑00 p.m. complainant party heard cries of Shahdad whereupon he, his nephews Nawab and Kamal came running there and saw that accused are causing hatchet blows to him. The complainant party entreated the accused persons on Holy Qur'an and being empty handed did not go there to the above mentioned accused. The deceased was killed by the, accused and therafter all the accused went away. The complainant party found Shahdad by sustaining injuries and was bleeding and found dead. Complainant left the witnesses over the dead body and he approached the Police Station and where his F.I.R. was lodged. After due investigation of the case, challan was filed in the Court having jurisdiction. The bail application on behalf of the respondents Nos. 1 to 3 was filed and the same was granted. It is contended by the learned counsel that the names of the respondents Nos.1 to 3 are disclosed in the F.I.R. and part of causing injuries to deceased Shahdad is attributed to the respondents Nos. 1 to

3. It is further urged by the learned counsel that the F.I.R. was promptly lodged without any delay and the trial Court has deeply gone while appreciating the evidence of defence, which is not requirement of law at the bail stage. It is further argued by the learned counsel that the crime weapons have also been recovered from the respondents and enmity enmity is admitted in the F.I.R. It is lastly argued by the learned counsel that the deceased has sustained four injuries on neck, which is delicate part of the body and incident has occurred in broad daylight and there is independent evidence against the respondents and their bail may be cancelled. Conversely Mr. Habibullah G. Ghori, learned Advocate for respondents Nos.1 to 3 has opposed the application and raised the following grounds:‑‑ (1) There are general allegations in the F. I. R. about the inflicting of injuries. (2) There is discrepancy in ocular and medical evidence. (3) There is delay of S hours in lodging of the F.I.R. (4) There is no allegation of tampering of evidence after grant of bail by the trial Court and lastly it is urged by the learned counsel that the impugned order is based that there is every possibility of incident being unwitnessed. Mr. Ghori in support of hi s arguments has relied upon case of State v. Hussain and others (PLD 2002 Kar. 1). Mr. Ali Azhar Tunio, learned A.A.‑G. has supported the application and it is further stated that the applicants are not entitled for concession of bail as all the three. respondents have caused the hatchet blows is the deceased and as per medical evidence the deceased had sustained four incised wound, whereas injuries Nos. 1, 2 and 3 are caused ;it same place and with same force as the diameter of injuries Nos. 1 to 3 is 14 x 3 c.m The said injuries are located on neck being delicate part of the body. It is further urged by the learned A.A.‑G. that deeper appreciation has been made by the trial Court while deciding the bail application of the respondents. It is further urged that the impugned order is not based on propel, appreciation and fact in law and the same be set aside and bail of the respondents be, cancelled. I have gone through the entire record available on the record and the arguments of the learned counsel for the respective parties, and the case‑law relied upon. The learned Judge while granting the bail has mainly emphasized that there is every possibility of incident being unwitnessed and there is delay of five hours in lodging of the F.I.R From the perusal of the F.I.R., it is stated that accused have caused the hatchet blows to the deceased Shahdad whereupon the complainant, P.Ws., Nawab and Kamal entreated the accused persons in the name of Holy (fur' an, but the accused persons killed Shahdad due to previous ennuty. As per F.I.R, there is no general allegation against the respondents, but it is specifically stated that all the accused who were armed with hatchets indicted the hatchet blows to the deceased. The prosecution during the course of investigation has also recovered the crime weapons. The ocular evidence and medical evidence is not with conflicted on the contrary the deceased had sustained four injuries and injuries Nos. 1 to 3 indicates that it was incised wounds of 14 c.m x 3 c.m. on the neck. In the F.I.R. it is also stated that accused caused injuries on neck and it is yet to be determined after some evidence is brought on the record that who caused the fatal injuries to the deceased, then the respondents can challenge that no specific injury was caused. This is broad‑day incident and there is no question of mistaken identity on the part of prosecution witnesses. At the time of arguments Mr. Ghulam Hussain Shaikh Prosecutor of the said Court and the Public Prosecutor have given no weight to the prosecution case while arguing and deciding the bail application. The trial Court is required to construct the liability of each accused, but not to find out the minor defects in the prosecution case. The presumption of the trial Court that there is possibility that no one has seen the incident. This proposition cannot be brought on record before recording of the evidence of prosecution case. The respondents /accused were arrested on 22‑11‑2000 and recoveries of the hatches were effected. The respondents/accused in furtherance of their common intention are liable vicariously and the culprits who are armed with deadly weapons and pre‑planned an attack on their opponents and committed the murder of deceased Shahdad. In view of this position Court would be justified to draw an inference that offence so committed was in furtherance of common intention of each one irrespective of the role played by each of them. It is established law that common intention is sole test of joint liability under section 34, P.P.C. and the trial Judge while granting bail to the respondents has travelled in haste to extend the bail to the respondents. The observation of the trial Judge in respect of raising no objection is based contrary to the facts available in the present case. The trial Court has to examine the case of prosecution as well as the prayer trade by the respondents, but not solely depend if Prosecutor concedes for grant of bail. The respondents/accused were not entitled for concession of bail when it is specifically stated that all nominated accuse inflicted hatchet blows to the deceased within: the sight of complainant and two independent witnesses and they entreated and extended slogans in the name of Allah to spare the deceased and all the injuries attributed to the respondents Nos. 1 to 3 were found fatal. The deeper appreciation at the bail stage is always deprecated by the superior Court. The trial Court has to appreciate the evidence of three eye‑witnesses during the course of trial for their presence at the place of occurrence at relevant time and it cannot only be observed by the trial Court that there is possibility that the incident is unwitnessed. The F.I.R. was promptly recorded which had eliminated possibility of deliberation and fabrication in lodging of the F.I.R. The medical evidence was corroborated account of eye‑witnesses, and there is tentatively no discrepancy in respect of injuries sustained by the deceased on his neck, which were found fatal. The trial Court has wrongly extended the concession of bail to the respondents Nos. 1 to 3 as they were not eligible for concession of bail as per prosecution case. There is pronouncement of a judgment in case of Javaid Iqbal and others v. State (1998 SCMR 903). It is observed in the above‑noted authority that if there is any evidence on record that the accused had acted in furtherance of common intention in the commission of offence and there is so‑called version was neither proved nor confidence inspiring and the Hon'ble apex Court has dislodged the contentions and the appeal was dismissed. Even in case of Ajmal Khan v. Liaquat Hayat Hon'ble Supreme Court of Pakistan while deciding the appeal reported in PLD 1998 SC 97 it is held that accused had committed the offence in broad daylight and circumstances show that deceased had sustained solitary fire‑arm shot injury, but the same injury is attributed to three accused would not be a ground for bail. The law cited by the learned counsel for the respondents/accused is distinguishable from the fact and circumstances of the present case. For the facts and reasons stated above, I am of the view that the respondents Nos. 1 to 3 were wrongly released by the trial Court and the application is allowed and the impugned order is set aside and bail granted by the trial Court is hereby cancelled. The respondents shall surrender before the trial Court in case the respondents did not appear then the trial Court will be at liberty to issue N.B.Ws. against them. N.H.Q./M‑404/K Bail cancelled.