1976 PLP 1003 (PCRLJ)

Hamid All Mirza for the Complainant. The two petitioners along with two others, namely, Nur‑ur‑Rehman and Aziz‑ur‑Rehman have been accused of the commission of offences under sections, 302. 307 and 452 read with section 34, P. P. C. In this incident Ali Akbar, complainant, received injuries with a sharp‑edged pointed weapon and his brother Muhammad Aslam, who had come as a guest to his house, lost his life on account of the injuries caused by the same type of weapon. The injuries to the deceased and Ali Akbar, complainant, are attribut6d to Nur‑ur‑Rehman and Azizur Rehman who are sons of Qasim Ali petitioner No.

1. Muhammad Ali is a neighbour of the accused but has no relation ship with the other accused. The parties reside in a suburb of Moghalpura called Sansi Quarters. The complainant has built a kacha house. The accused Qasim Ali petitioner and his sons live at the back in a kacha house but have built a baithak for themselves in front of their house. The complainant had improvised a kacha drain for the out flow of the dirty water from his house. This dirty water gathered before the baithak of the accused who took objection to it.

3. On the day of the occurrence at about 5‑30 p.m. the complainant was passing from near the jhuggi of Qasim Ali petitioner where Nur‑ur Rehman, Azizur Rehman and Muhammad Ali were playing a game. Nur‑ur Rehman showed a fist to the complainant and asked him to close the drain. The complainant replied that the land was owned by the Government and that his dirty water would flow from the same drain. Nur‑ur‑Rehman there after grappled with the complainant but he was separated by Muhammad Aslam deceased; the complainant's wife Nur Bibi and his daughter Razia. The complainant and the members of his family then came into their jhuggi. Some time thereafter all the four accused pushed the door of the house. Qasim Ali caught hold of the complainant by his collar and dragged him out. Nur‑ur‑kehman gave him a blow with an iron sua which he was hold ing at that time. Aslam came to rescue his brother. Qasim Ali and Muhammad Ali caught hold of the complainant and gave him fist blows. The other two accused Nur‑ur‑Rehman and Azizur Rehman continued giving blows to Aslam with the iron sua with which they were armed. Muhammad Aslam was being carried for medical aid when he died in the way.

4. The petitioners applied for bail to the Sessions Court but Raja Muhammad Khurshid, Additional Sessions Judge, Lahore, dismissed their bail application by his order dated 17t1, of April 1974, on the ground that specific role had been attributed to them and that they bad overpowered the complainant thereby rendering him helpless in rescuing his brother.

5. It is submitted by Mr. Kayani that both the petitioners were empty handed and that Qasim Ali being the father of the two other accused, to whom fatal injuries have been attributed, has been falsely involved. It is further submitted that Muhammad Ali is not related to the other three co‑accused in any case bad no motive to join the attack. It is further sub mitted after reference to the plan of the spot that the occurrence took place in the street at some distance from the baithak of the accused and the story that the accused had trespassed into the house of the complainant had been invented to magnify the offence. The learned counsel also submits that their was no evidence to substantiate the observation of the learned Additional Sessions Judge that the two petitioners had caught hold of the complainant in order to render him helpless in intervening on behalf of his brother. The learned counsel has cited Lal Din v. Muhammad Malik and 4 others (1972 P Cr. LJ 624) in support of the legal contention that the extent of the vicarious liability can be fixed only after recording evidence and that at this stage, the matter having admittedly flared up suddenly, it cannot be said that the two unarmed petitioners shared the common intention of the two other co‑accused.

6. On behalf of the State and the complainant it has been submitted that the petitioner may have been unarmed but they did play a role in the commission of the offence. The Investigating Officer is present. He states that he has drawn up the challan and is going to submit the same to the Prosecuting Agency for the purposes of vetting the same. lie further states that aerording to his investigation the second incident followed the first after an interval of ten minutes.

7. The plan of the spot shows that the occurrence took place in the street. The matter did flare up suddenly as is stated in the F. I. R. Qasim Ali petitioner is not said to be present when the first incident took place. I do not comment on the argument of the learned counsel on merits. But is view of the fact that the two petitioners were empty‑handed and are said to have caused some fist blows to the complainant, I would direct that, they should be enlarged on bail in the sum of Rs. 10,000 (Rupees ten thousand each with one surety each in the like amount to the satisfaction of the Assistant Commissioner, Lahore.

8. The extent of their vicarious liability will be disclosed after the recording of the evidence and the learned Magistrate shall be then free to consider the question of cancelling the bail of the petitioners. Petition allowed