1990 P Cr (PLP)

Shaukat H. Zubedi, AA.‑G. for the State. Date of hearing: 31st August 1989. Applicant Abdullah who is detained in Crime 269 of 1989, Police Station North Nazimabad, under section 302/34, P.P.C. applied for bail before learned Sessions Judge (Central), Karachi, but without success. He has, therefore, approached this Court with the same prayer.

2. On 19‑4‑1.989, at about 2 p.m. deceased Nasir Mehmood and his relatives were unloading plastic material from a truck which had blocked the street. In the meanwhile the present applicant and co‑accused Liaquat arrived there in a Suzuki van. They protested against this blockade and upon this there was exchange of hot words. The accused grappled with deceased Nasir Mehmood. The parties were, however, separated. It is alleged that after a short while the applicant and co -accused Liaquat again came to place of occurrence and this time applicant caught hold of deceased Nasir Mehmood, while Liaquat stabbed him by means of Chhuri. Both of them then bolted away. Deceased Nasir Mehmood succumbed to injury on way to hospital. On the same day at 4‑55 p.m. the report of this incident was registered.

3. I have heard Mr. IA. Hashmi, learned counsel for applicant and Mr. Khawaja Adeel Ahmad, learned counsel for complainant Muhammad Sadique. I have also heard Mr. Shaukat H. Zubedi; learned AA.‑G. for State, who has raised no objection to the grant of bail to applicant.

4. Mr. I.A. Hashmi, learned counsel for applicant has contended that the incident took place all of a sudden in which co‑accused Liaquat had sustained six injuries at the hands of deceased Nasir Mehmood and his associates. He has further suggested that the common intention pre‑supposes prior concert which is lacking in this case. An attempt has also been made to show that the story regarding the second visit of accused persons was coined with a view to strengthen the case of the prosecution. I have carefully examined the evidence collected by police during the course of investigation in juxtaposition to the plea now raised on behalf of applicant. I have, however, not discovered the result, which apparently Mr. Hashmi, learned counsel for applicant has tried to produce. No doubt none of the prosecution witnesses has stated about the presence of injuries on the person of accused Liaquat, but all of them are unanimous that there was physical fight between the accused on one side and deceased Nasir Mehmood on the other side. In order to decide a bail application, it is only a prima facie opinion that is required and the Court cannot enter into the niceties or details of the evidence. The evidence, which is on record shows that the actual incident of killing of Nasir Mehmood took place immediately after the first fight. The crucial test as to applicability of constructive liability is found in the phrase `in furtherance of common intention of all', and once the prior meeting of minds is shown from the record, the provisions of section 34, P.P.C. are attracted.

5. Both Messrs IA. Hashmi, learned counsel for applicant and Khawaja Adeel Ahmed, learned counsel for complainant Muhammad Siddique have referred to a number of authorities, but I do not find it necessary to discuss them, because it is a question of fact in each particular case, whether the evidence produced by the prosecution can or cannot be considered to be sufficient to bring a case within the mischief of section 34, Cr.P.C.

6. The offence with which the applicant is charged is punishable with death or imprisonment for life, and the learned counsel for applicant has not been able to bring it out of prohibitory clause of section 497, Cr.P.C. No case for bail is made out and the application is accordingly dismissed. S.A./A‑714/K Bail refused.