P L D 2002 Karachi 99 (PLP)

Brief facts of the matter per F.I.R. No.236 of 1999 lodged at Police Station Dadu on 16-11-1999 are that on the same date at 11-45 hours the complainant Ali Nawaz had accompanied his brother Ali Murad alongwith his nephews Ilyas and Ali Hyder to Dadu for the purpose of attending the Court of the learned Judicial Magistrate, Dadu. Thereafter the complainant party were returning back to their vi21age and had reached the Bus Stop at Dadu at 1145 hours, when the complainant alongwith his nephews Ilyas and Ali Hayder-went to purchase some articles and left Ali Murad at the Bus Stop. Suddenly on hearing gun-shot the complainant saw the applicant/accused Haji Punhal grappling with Ali Murad and accused Alam tiring with a T.T. Pistol at the latter, Ali Murad raised cries and fell down, upon which the accused persons told the complainant and his nephews not to come near otherwise they too would be killed. Thereafter the accused ran away by firing in the air. Then the complainant discovered, that Ali Murad had die, and immediately started chasing the accused and saw that the Police personnel on duty had arrested accused Alam and recovered a T.T Pistol from him. Thereafter every one went to the Police Station where the F.I.R. was lodged to the effect that the accused had murdered the deceased due to enmity on the basis of Karo Kari. Learned counsel for the applicant on the strength of the foregoing facts has submitted that admittedly the applicant Haji Punhal only caught hold of the deceased whereas the main accused Alam had fired the fatal shots and hence the question of Vicarious liability was vet to be determined which could only be done at the trial. Secondly learned counsel has submitted that there are no independent witnesses of the crime in question since all the prosecution witnesses are related inter se. Consequently at the stage their presence is doubtful at the scene of occurrence without any corroborative evidence which only the trial Court is competent to assess at the trial. Hence per the learned counsel the applicant's case is one of further inquiry and therefore he should be granted the concession of bail Learned counsel for the applicant has relied upon the following case-law Mehmood Akhtar v. The State (1995 SCMR 310), Basharat Hussain v. Ghulam Hussain (1978 SCMR 357), Shahid v. The State (1994 SCMR 393), Muhammad Haleem Khan v. The State (1986 PCr.LJ 1457). On the other hand the learned State Counsel has opposed the grant of bail on the ground that merely because the witnesses are from the same family is no reason to disbelieve them. Secondly from the contents of the F.I.R. it is quite obvious that the applicant had facilitated the broad daylight murder of the deceased by catching hold of him so that he could put up no resistance. Hence prima facie vicarious liability can be attributed to the applicant. He has relied upon the following case-law: Mst. Barkat Bibi v. Gulzar (1979 SCMR 65), Munawar v. The State (1981 SCMR 1092. I have heard both the learned counsel and my conclusions are as follows: It would be seem that as per allegation contained in the F.I.R. the applicant/accused Haji Punhal had caught hold of the deceased Ali Murad whereas accused Alam fired with a T.T. Pistol at the latter due to which he died. In my opinion, prima facie, the applicant/accused Haji Punhal can be connected to the crime in question as he had allegedly facilitated the murder of the deceased Ali Murad and hence at this stage the applicant can be held vicariously liable for this act. In this connection it would also be seen that per the Hon'ble Supreme Court the issue of vicarious liability can also be considered at the bail granting stage provided the material placed before the Court justifies the same. For this proposition .Muhammad Rasheed v. The State 1979 SCMR 92 may be relied upon. It would also be seen-that it has been settled by the Supreme Court that where the co-accused takes an active part in the crime in question viz. causes injury to the deceased or facilitates the other co-accused to do away with the deceased; the issue of vicarious I liability at the bail granting stage has been decided against the co-accused. In this connection Hafiz Imam Bux v. Muhammad Bux 1979 SCMR 197, Gul Khan v. Gul Daraz Khan 1995 SCMR 1765; Shah Zaman v. The State PLD 1994 SC 65 may be referred to: As far as the cases cited by learned counsel for the applicant, in my view the same are distinguishable as in Mehmood Akhtar v. Haji Nazir Ahmad (supra) two versions of the same incident were recorded and in Shahid v. The State (supra) bail was granted in order to maintain the principle of consistency. For the foregoing reasons, in my opinion, the applicant can be tentatively connected to the crime in question since he has, prima facie) facilitated the, murder of the deceased and hence can be held vicariously liable for the same. Above are the reasons for the short order passed earlier by myself rejecting the bail application. H.B.T./H-56/K Bail application dismissed.