1990 PLP 140 (MLD)

Malik Rab Nawaz Noon and Amber Tajwar for the State. Date of hearing: 18th September, 1989. Petitioner Nasrullah has applied for the grant of bail in a case registered against him and two others under section 302/34/109, P.P.C. at Police Station Banni, vide F.I.R. No‑151, dated 27‑4‑1989.

2. According to the F.I.R. the allegations levelled against the accused persons are that on 27‑4‑1989 at 11‑00 a.m. the petitioner and his co‑accused Sultan Ahmad visited the shop of deceased Qaisar Khan having reached there on a bicycle and both of them abused the deceased by saying as to why he took exception to the meetings between Missal Khan and Sultan Ahmad co‑accused of the petitioner. They further shouted that they will not leave Qaisar Khan alive, thereafter the deceased got up from his shop and had just stepped out of the door of the shop when Sultan Ahmad co‑accused fired at him twice with his pistol which resulted into his death. Sultan Ahmad and the petitioner at once made good their escape by riding the bicycle. According to the F.I.R. the motive was that Missal Khan co‑accused is the real uncle of the deceased and the complainant who is unmarried and he used to make over all his earning to Sultan Ahmad, for which he used to taunt Sultan co‑accused as to why he was enjoying and squandering the income of Missal Khan, uncle of the complainant and the deceased.

3. I have heard the learned counsel for the parties and have perused the record brought by the investigating officer. The learned counsel for the petitioner contended that‑from the perusal of the F.I.R. it is crystal clear that the petitioner did not share the common intention with his co‑accused who had caused the death of the deceased and had a separate motive for the commission of the crime. According to the learned counsel, the petitioner cannot be saddled with the responsibility of murder on the principle of vicarious liability. Learned counsel also urged that the bare perusal of the F.I.R. as well as the statements of the eye‑witnesses recorded during the course of investigation shows that there is no direct motive with the petitioner. At the most, the petitioner was present there innocently but he did not share the common intention with his co‑accused for the commission of crime. The learned counsel further elaborating his arguments submitted that the common intention according to law means pre‑concert and pre‑arrangement which is lacking in the present case and has placed reliance on 1974 PCr.LJ 473 and P L D 1983 Pesh.

37. In this case one of the appellants suddenly took out a pistol and caused the death of the deceased. Their Lordships in appeal held that it was the individual act of the co‑accused and the person who did not cause any injury was not liable for the commission of crime on the principle of vicarious liability. The learned counsel submitted that his case is on the same footing, because in the present case, all of a sudden Sultan Ahmad co‑accused took out a pistol and fired at the deceased and the petitioner in normal circumstances was not aware of this fact that his co‑accused was carrying a pistol and would cause the death of the deceased on some dispute. He has placed reliance on 1985 PCr.LJ 1564. On the basis of the aforesaid submissions, the learned counsel submitted that there exist no reasonable grounds on the material so far collected by the prosecution to connect the petitioner with the commission of crime, hence he is entitled to bail.

4. The learned counsel for the complainant as well as the State vehemently opposed the grant of bail on the ground that no doubt the petitioner was empty handed, but he participated in the commission of crime, went to the place of occurrence alongwith the principal accused Sultan Ahmad and had shared the common intention with him and has placed reliance on 1985 PCr.LJ

451. On the basis of this authority the learned counsel for the State assisted by the learned counsel for the complainant urged that mere presence of the petitioner at the spot, going together with the principal accused on a bicycle and their previous acquaintance is sufficient to show that the petitioner shared the common intention with the principal accused and he is not entitled to the grant of bail at this stage, because there exists reasonable ground for believing that he is involved in a case which is punishable with death or imprisonment for life, hence falls within the prohibitory clause of section 497(1), Cr.P.C.

5. I have given my anxious consideration to the various contentions raised before me in connection with this petition. Learned counsel for the complainant as well as for the State has urged that according to the provisions of section 497, Cr.P.C. an accused shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Elaborating his arguments, learned counsel submitted that in the present case there are reasonable grounds for believing that the petitioner is guilty of an offence punishable with death. The words 'reasonable grounds' give power to the Court to adjudicate upon the factual aspect of the case and to look into the material collected by the police i.e. the F.I.R. and statements of P.Ws. recorded under section 161, Cr.P.C. as well as any other evidence collected by the police during the course of investigation to form tentative opinion whether there exist reasonable grounds for believing that the accused is responsible for the commission of the offence which is punishable with death or imprisonment for life or for ten years. The words `reasonable grounds' presuppose the appreciation of the material referred to above, though tantatively, at a bail stage, in order to find out where there are reasonable grounds to connect the accused with the commission of crime. Applying the principle referred above, to the present case, I find that the material so far collected by the police prima facie does not connect the petitioner with the commission of crime as there is reasonable possibility that the petitioner might not have shared the common intention with the principal accused, as he was not armed and he did not raise any Lalkara nor any over-tact is attributed to him. Although the petitioner was seen with the principal accused on a bicycle, yet according to the F.I.R. the principal accused all of a sudden took out a pistol and fired at the deceased. The petitioner may not be aware of the fact that the principal accused has a pistol, which he used in the commission of crime, so the principle of vicarious liability cannot be invoked against the petitioner. In my opinion the case of the petitioner is that of further inquiry and the petitioner is entitled to bail as a matter of right under section 497(2), Cr.P.C. I, therefore, admit the petitioner to bail in the sum of Rs.50,000 (fifty thousand only) with two sureties each in the like amount to the satisfaction of the A.C./Duty Magistrate, Rawalpindi.

6. Any observation made above for the decision of this bail application is of tentative nature and would not affect the appreciation of evidence, which the trial Court is required to make after the conclusion of the trial. N.H.Q./N‑282/L Bail granted.