2008 PLP 1096 (MLD)

MUNIB AHMED KHAN, J.

This is an application for bail moved on behalf of the applicant, who is facing trial in Crime No.80 of 2007, Police Station Town Mirpurkhas, under sectiona 302, 324, 147, 148, 149, 504, 114, 337-H(ii), 337-A(i) and 337-F(i), P.P.C.

2. Brief facts of the prosecution case as per F.I.R., are that on 10-6-2007 at about evening time when complainant Noor Muhammad was standing in front of his house, there was exchange of hot words in between accused and complainant 'on the issue of use of low quality material in CC work on the road. Thereafter at about 1745 hours complainant party saw that Abdullah Pathan, Akber alias Kakai Pathan, Habibi, Hukum Khan, Dawood Pathan, 5-6 City Contractors, Ghaffar, Rehmatullah and four others duly armed with deadly weapons came there on five motor cycles and one red colour car and while uttering words the accused persons on the instigation of Abdullah Pathan, fired from their respective fire-arms. As a result of which, Muhammad Ali died while P.Ws. Muhammad Saleem, Muneer, Rasheed and Ghaffar `sustained fire-arm injuries on different parts of their body. On the cries raised by complainant party P.Ws Asghar, Abdul Sattar and others came and raised hakals, thereafter the accused persons ran away on their car and motorcycles. Such F.I.R. was lodged at the Police Station.

3. Learned counsel for the applicant submits that the applicant has wrongly been involved in this case, and that the F.I.R. has been lodged after about six hours, while the Police Station is at a short distance, and that only allegation against the applicant is that he caused injury on the hand of P.W. Muneer, which is on non-vital part of the body, while common intention in respect to other provisions of law is to be scrutinized after evidence. He further submits that the intention of the applicant can be ascertained from the fact that he made only single fire, otherwise the complainant party was at their mercy and he could cause more injuries but his intention was not that. Learned counsel further submits that the medical evidence is in conflict with ocular evidence, while the applicant is youngman of about 17 years and confined in jail.

4. On the other hand, learned State counsel has not opposed the bail application on the ground that the injury attributed to the applicant is minor injury and does not fall within the prohibitory clause.

5. After hearing learned counsel I have perused the order of trial Court, in which following observation has been given:-- "I have perused the record. In this case applicant/accused was armed with pistol and he along with co-accused who were armed with kalashnicov, guns and rifles had gone to the houses of complainant party with the pre-planning and they all indiscriminately fired upon the complainant party with the result one person died and other four sustained fire-arm injuries on the different parts of their bodies. Specific role has been attributed to the applicant/accused for causing fire-arm injury to P.W. Muneer. In the cases reported in PLD 1986 Kar. 26, 1983 PCr.LJ 184 and NLR 1981 Cr.C. 297, bail was refused to the accused who has used gun and caused only simple injuries to the witness. In another case reported in 1985 PCr.LJ 1435 bail was refused on the ground that when allegations made in the F.I.R. remained unrebutted and accused armed with different kinds of weapons laid down the complainant party, the section 149, P.P.C., will be applicable in the circumstances."

6. From the above position it appears that the factual narration in the F.I.R. a common intention on the part of applicant/accused is appearing, in which one person died and other 4-5 persons were injured. The applicant was part of the association of these persons, who gathered for one and same purpose, therefore, plea of causing minor injury is not sufficient, as each and every person of the gathering is individually and collectively liable for the harm caused to the opposite party. In the instant case applicant allegedly fired from his TT pistol and injured P.W. Muneer by hitting his left hand. It cannot be said that the exact intention of the applicant was to cause injury at the hand of P.W. Muneer, but it is to be seen that applicant fired from his dangerous weapon towards P.W. Muneer and the bullet could hit his main organ as well, but it was luck of Muneer that he escaped and sustained injury on his left hand. The scenario in the F.I.R. shows that 5-6 accused persons, armed with deadly weapons, were straightly firing on the complainant party, therefore, it cannot be considered that each and every person is to be isolated and be taken separately for his own misdeed. In such situation all the loss which has been caused in one gathering jointly vis-a-vis all the participants are to be taken into count while deciding the innocence of an applicant or otherwise. This is bail stage and deeper appreciation of evidence is not warranted. The picture formed from the F.I.R. as well as statement recorded under section 161, Cr.P.C. places the applicant and other accused in front line of the case. Since there appears common intention, hence case falls within prohibitory clause, as one person was murdered and other 4-5 persons were injured. In the circumstances, no leniency in the matter can be observed, the bail application is dismissed. M.H./A-32/K Bail refused.