2000 PLP 1133 (YLR)

I have heard the learned A.A.‑G. who has vehemently opposed the bail application on the grounds that the name of applicant/accused is specifically mentioned in the F.I.R. with specific allegations against him causing the injuries to deceased Mst. Zakia as well as to injured baby Shahmian. He has further stated that both the babies have involved the present applicant/ accused in their 161, Cr.P.C. statements and 164, Cr.P.C. statement of baby Shahmian. This is a fresh case in which challan is yet to be submitted and the discrepancies pointed out by the learned counsel for the applicant/accused in between the F.I.R. and 164, Cr.P.C. statement cannot be assessed deeply at this bail stage. He further argued that he is the main accused against whom the motive is attributed and he is author of this unfortunate incident at whose behest the other persons have acted unlawfully and had entered the house of complainant and committed double murder of two persons and caused injuries to two babies. I have gone through the record and the bail order passed by the learned trial Court. It appears that this unpleasant incident had occurred due to the reason that applicant/accused Zaman had a dispute with deceased Faqir Shah over a plot and, therefore, he committed two murders of innocent persons and caused injuries to the babies. The name of applicant/accused is nominated in F.I.R. with a specific part of infliction of injuries having been caused by him to deceased Mst. Zakia as well as to baby Shahmian. So far the discrepancies in F.1.R.; and 164, Cr.P.C. statement are concerned, suffice to say that at this bail stage, I cannot undertake to assess the evidence so deeply and further looking to the peculiar circumstances of this particular case in which, 164, Cr.P.C. statement of baby Shahmian, whose age is hardly about 10 to 12 years and therefore, such type of minor contradictions are bound to come. Further, these discrepancies can be well discussed and considered when evidence of complainant and baby Shahmian is recorded. I have gone through the case‑law referred to by the learned counsel for the applicant. The cases cited by the learned counsel for the applicant are on different footing and are based on very much distinguishable facts and circumstances. The points involved in these cases are either on identification point or on the point of lalkara and that no specific parts have been assigned to those accused who were granted bail. The next controversy involved is to the effect that the challan of the applicant was not submitted in time. I am afraid as the aforesaid; points are not involved in this case neither the mistaken identity is there in this case nor this is a case of lalkara by present accused. The present accused has criminally trespassed the house. He was armed with hatchet. He caused hatchet injuries to deceased Mst. Zakia and baby Shahmian. He is nominated in the F.I.R. and had the motive against deceased Faqir Shah. So far the point of non‑submission of challan in time is concerned, it can only be decided when some evidence is recorded at the time of trial. Under certain circumstances, bail can also be refused to a person to whom specifically fatal blow is not attributed and each criminal bail application has its own facts and circumstances and even if, there are general allegations against all the accused, in that event also, the accused can be held to be vicariously liable. In this case the applicant even otherwise can be held to be vicariously liable to other accused as he was armed with deadly weapon and had attacked unarmed victims, B therefore; the provisions of section 34, P.P.C. would come into play. The reference can be had to a case of Shahzamin and 2. others v. The State and another PLD 1994 SC 65 wherein their Lordships age 70 have held:‑‑ "

8. We are of the view that in case, when armed assailants attacked unarmed victim omission to pin point in F.I.R. as to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far as conviction on the basis of charge under section 302, P. P. C. is concerned, except on question of sentence, if trial Court believes evidence produced by the prosecution. Section 34, P.P.C. envisages that if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone. In this case in F. I. R. there is allegation that all the three appellants were armed with Lathis and Sarya and all of them inflicted injuries on the deceased. Everything depends on the intrinsic value of the evidence which is produced by the prosecution and it is for the trial Court to evaluate that evidence and come to the conclusion according to law." The reference can also be: had to the case of Ghulam Nabi v. The State 1996 SCMR 1023 wherein their Lordships at page 1024 have held:‑‑ "

3. On the night between 1/2‑8‑1993 at 1‑00 a.m. the complainant, is wife Mst. Fatima, Mst. Sharifan deceased, Muhammad Panah and Rato P.Ws. were sleeping in the house when co‑accused Ghulam Sarwar armed with a pistol, Imam Bakhsh armed with a gun and the petitioner armed with hatchet trespassed into the house and on being asked by the complainant as to why they had come there the accused armed with fire‑arms fired at Mst. Sharifan resulting in her instantaneous death. The petitioner is alleged to have advanced threats that whosoever came near would be done away with.

4. Learned counsel for the petitioner contends that no injury to the deceased has been attributed to the petitioner, therefore, his case is of further enquiry and he is entitled to the concession of bail.

5. After considering the above submission in the light of material available on the record we do not find it a fit case for interference with the discretionary order of High Court. The occurrence took place in the House of complainant, therefore, the inmates of the house are the most natural witnesses of the occurrence and the petitioner is the only person having motive to do away with the deceased. The learned Single Judge, therefore, rightly observed that prima facie the principle of vicarious liability was attracted. In the circumstances no ground for the interference with the impugned order is made out. The petition is dismissed." Under these circumstances I do not find that the applicant/accused is entitled for bail and the learned trial Court has very rightly rejected the bail application, which does not call for any interference. I had dismissed the bail application by a short order dated 25‑6‑1999 and these are the reasons for the same. N.H.Q./Z‑50/K Bail refused.