1994 P Cr (PLP)

Applicant Ikram-ul-Hasan Zaidi is facing trial under sections 302, 307/34, P.P.C. before the learned 1st Additional Sessions Judge, Karachi (Central). The brief facts giving rise to the present application are that on 4-4-1990 Mst. Shahida Begum lodged report at Police Station Liaquatabad that her brother-in-law Ikram-ul-Hasan Zaidi resides in House No.100 which is adjacent to her house. Her mother is living separately but since she is old and ailing person, she comes to stay at her house whenever she is ill. The stay of her mother with complainant is disliked by Ikram-ul-Hasan Zaidi, his son Nadeem, her sister and brother-in-law living in her mother's house which they had occupied forcibly and are also collecting the rent from the tenants. It was further alleged that Ikram-ul-Hasan Zaidi and his son had fought with her and her son previously also and had issued threats. Today, on 4-4-1990 when her son Hameed-ul-Zaman and complainant were present, Ikram-ul-Hasan Zaidi arrived with his son and observed that you are selling household articles of "Amman". They are also sharers in the household goods and we go to the Councillor, she and her son told them that they all should go to the police station with "Amman". At about 1-15 p.m. when they alongwith Amman started going towards police station, Ikram-ul-Hasan, Zaidi and his son Nadeem observed that they will see how they go to the police station, and thereafter, Ikram-ul-Hasan Zaidi caught hold of her son Waheed-ul-Zaman, and his son Nadeem fired 3 shots at Waheed-ul-Zaman, who fell down. When her son Hameed-ul-Zaman came to save his brother, Nadeem also fired on him but the same missed. She started shouting and the Mohallah people gathered there. MA. Jalil is the eye-witness of this incident. On arrival of the Mohallah people accused ran away. Her son took Waheed-ul-Zaman in her car to Abbasi Shaheed Hospital, where doctors disclosed that he was dead. After necessary investigation the applicant and his son were challaned before the Court. An application for bail was moved before the learned trial Judge but the same was rejected on 4-9-1990. It was contended by Mr. Naqvi learned counsel appearing for the applicant, that there is no allegation that the applicant was armed with any weapon at the time of incident, and there is no recovery of blood-stained clothes from the applicant. He has further contended that further statement of the complainant before the police and the evidence of witness MA. Jalil shows that the applicant Ikram-ul-Hasan Zaidi had gone to the house first, and co- accused Nadeem came later. That no overt act has been assigned to the applicant except that he caught hold of the deceased which can be in order to restrain the deceased from going to the police station. There is no evidence to show that the applicant knew that his son Nadeem was armed with revolver/pistol at the time of incident, and therefore, the case of the applicant requires further inquiry. Mr. Nooruddin Sarki, learned counsel appearing for the complainant has opposed the grant of bail to the applicant on the ground that the applicant and his son Nadeem had come prepared to the house of the complainant to commit murder of her son. He has further contended that the fact that the applicant caught hold of the deceased while Nadeem fired at him goes to show' that they had a common intention. Mr. Shaukat H. Zubedi, learned AA.-G. appearing for the State has contended that at present there are no circumstances to indicate that there was common intention between the applicant and his son to commit murder of deceased. He has further contended that the further statement of the complainant and statement of P.W. MA. Jalil do show that accused Nadeem came to the place of Wardat later. I have considered the contentions of the learned counsel. The bare reading of the F.I.R. shows that the applicant wanted to prevent the complainant from selling the household articles of "Amman", and when the complainant and her son wanted to go to the police station alongwith "Amman", the applicant caught hold of the deceased. There is no allegation that he instigated his son to fire at Hameed-ul-Zaman. At present there is no evidence to show that the applicant knew that his son Nadeem was having a A revolver/pistol with him. There is no recovery of blood-stained clothes from the applicant. In view of the above circumstances, it will be seen at the trial whether the applicant shared common intention with his son Nadeem.to kill deceased, Hameed-ul-Zaman. In the case of Basharat Hussain v. Ghulam Hussain 1978 S C M R 357, wherein the allegation against the respondent was that he held the deceased while his son hit the deceased on the head, the learned Sessions Judge granted bail to the respondent. The complainant filed application for cancellation of bail before High Court but the same was dismissed. The complainant then filed a petition for Special Leave to Appeal before the Supreme Court and their Lordships of the Supreme Court were pleased to observe that:-- "1t is quite clear from the F.I.R that respondent No.1 was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No.1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further inquiry and the petitioner was entitled to bail and the petition was accordingly dismissed. In view of the above circumstances, and the legal position, I am of the considered view that at present there are no reasonable grounds to believe that B applicant shared common intention with his son Nadeem to kill the deceased, and consequently it cannot be said at this stage that the applicant had committed a non-bailable offence but his case requires further inquiry. I, therefore, direct that the applicant shall be released on bail on furnishing surety in the sum of Rs.1,00,000 (Rupees one lac) and P.R. Bond in IC the like amount to the satisfaction of the learned trial Judge. The observations made by me in the above order are tentative in nature and the learned trial Judge shall hear and decide the case uninfluenced by whatever has been observed by me in the above order. If any tangible evidence is brought on record against the applicant during the trial, it will be open to the learned trial Judge to cancel his bail. N.H.Q./I-238/K Bail allowed.