2005 PLP 3243 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

There was old enmity between the parties over murders committed from each side. In this background it is alleged that on 17-6-2004 at 9 p.m. the complainant Qadir Bux along with deceased Khuda Bux, P. Ws. Shabeer and Abdul Hameed was returning to his village after taking tea at the Hotel near Ghulam Nabi Chacher. When they reached the road, they saw 7 accused persons including the applicant. All the accused persons were armed with Kalashnikovs except the present applicant. It is alleged that the applicant instigated other accused not to spare complainant party on which other six accused persons who were armed with Kalashnikovs fired at the deceased Khuda Bux, which hit him who fell down on the ground thereafter the accused ran away. Learned counsel for the applicant has stated that the applicant has been involved due to enmity as he is elder of other accused persons, that no role has been assigned to him that mere role of Lalkara has been attributed to him, that the common intention is yet to be determined at the time of trial. On the said proposition he has relied upon the case reported as Abdul Raheem v. Javed (2002 SCMR 1415). Conversely, the learned A.A.-G. has stated that the name of the applicant is mentioned in the F.I.R., that the accused came together to commit the murder of the deceased due to old enmity, therefore, they shared common intention; hence the applicant is not entitled to the concession of bail. I have given due consideration to the arguments, gone through the material available on record and found that the parties are on inimical terms with each other. The applicant Rajib Ali is allegedly the elder of other accused persons. It is not the case of prosecution that all the accused came together to commit the offence but the case is that all the accused were already I standing on the road near the Hotel when the complainant party reached there and then the incident took place. If applicant Rajib Ali had common intention with the other accused to commit the offence and reached there for committing murder then he would have also armed himself with some fire-arm weapon or other deadly weapon. No overt act or any other part has been assigned to the applicant except a Lalkara nor he has facilitated the other accused to commit the offence nor he had deterred the P. Ws. or threatened them not to interfere in the matter. Applicant Rajib Ali was simple present and empty-handed which appears that the required intention involving ingredients of common intention is lacking in the present case. However, this requires deeper appreciation of evidence, which is the function of the trial Court and that can be done at the time of trial. At this stage a tentative assessment is to be made from the evidence and to form an opinion whether a case for bail has been made out or not. In the case of Abdul Raheem (supra) on the similar facts and circumstances, the Honourable Supreme Court of Pakistan granted bail to the accused person. Following the rule laid down by the Honourable Supreme Court of Pakistan, I am of the considered view that the applicant is entitled to the concession of bail, therefore, bail is granted to the applicant subject to his furnishing solvent surety in the sum of Rs.5,00,000 (Rs. Five lac only) and P.R. Bond in the like amount to the satisfaction of the learned trial Court. The application is allowed. H.B.T./R-49/K Bail granted.