1986 P Cr (PLP)

Aftab Ahmed Akhund for the Complainant. S. Sarfraz Ahmed Asstt. A.‑G. for the State. After the applicant As lam was refused bail in the trial Court, he has approached this Court for grant of bail. As disclosed in the F.I.R., one hour prior to the occurrence the co‑accused Iqbal Chandio and Uris Mir Bahar approached the complainant Atta Muhammad at Khatian Suzuki Stand where he was working as Starter to provide them Suzuki, as they wanted to go to Hyderabad. As the Suzuki drivers refused to go with them, the complainant told them accordingly. The said co‑accused were however not satisfied with their reply and they left in anger abusing the complainant in the Suzuki of Waris Punjabi. After one hour they returned in the same Suzuki accompanied by the applicant Aslam and Abdullah. Iqbal and Abdullah were armed with guns, Uris had revolver whereas the applicant Aslam carried dagger. On getting down from the Suzuki, they expressed that they wanted to teach the complainant a lesson for his refusal to provide them Suzuki. Both Iqbal and Abdullah caused injuries to the complainant with butts of their guns whereupon he raised cries which drew Abdul Jabar, Muhammad Farooque and the complainant's relative Shaukat Ali. As Shaukat Ali intervened to save the complainant, he was fired at by co‑accused Iqbal Chandio and in result he was hit on his head and died at the Vardat. All the four accused then fled away in the same Suzuki towards Khatian Railway Station. The learned counsel for the applicant contended that the applicant neither participated in the commission of the crime nor shared common intention with other co‑accused for committing the murder of Shaukat Ali or causing injuries to the complainant. Elaborating his arguments further he submitted that the applicant was not present at the time of row that took place between the complainant and two co‑accused Iqbal and Uris one hour before the Shaukat Ali's murder. According to the learned counsel even the dagger allegedly carried by the applicant at the time of incident was neither used by him nor was secured from his possession. He further submitted that none of the accused much less the applicant had any motive to commit the murder of the deceased Shaukat Ali. On the other hand the learned counsel for the complainant vehemently opposed the release of the applicant on bail. He argued that all the assailants including the applicant immediately on arrival of the Vardat expressed their determination to evenge the insult done to them in such a language that no doubt was left that they shared common intention to commit the murder. I have given my best thought to the arguments for and against the applicant. First of all the motive attributed to the accused was not so strong that they would join hands to take the life of the complainant. If that was their intention they were not expected to have caused injuries to him with butts of the guns. Moreover their target was complainant and not deceased, Shaukat for whose murder they had absolutely no motive. Merely because they came in a group armed with deadly weapons they would `not be saddled with common intention to A commit murder. As stated above the manner in which they acted prima facie did not prove such intention. It seems their intention was to create ewe in the mind of the complainant by show of force and Even give a good thrashing. That is why he was struck with butts of the guns. Nothing prevented them from firing at him. If deceased Shaukat Ali fell victim to firing if appeared to be the individual act of the accused whose firing brought about his death. As for the applicant he was not alleged to have played any active role at the time of occurrence. Although he was said to be carrying dagger with him, there is no allegation against him that he had caused injuries either to complainant or to the deceased nor medical evidence disclosed any such injury on their persons. However he was alleged to have jointly with other accused expressed threat to the complainant. But the language used by them in conveying their threats does not seem to be indicative of threat, of murder. Accordingly there are no reasonable grounds for believing that accused's common intention was to commit murder of the applicant or that the applicant shared such common intention. The learned counsel for complainant sought to support his arguments by placing reliance on the case of Munawar v. State 1981 SCMR 1092: This authority is obviously not helpful to the learned counsel for the, simple reason that as stated above there is no prima facie evidence to show that the applicant shared common intention to commit murder of Shaukat Ali deceased and as such he cannot be held as vicariously liable for the said murder caused by firing of the co‑accused. The next authority relied upon by the said learned counsel is the case of Chiraghdin and others v. The State P L D 1967 S C 340 in which mere presence at the scene of offence was held as sufficient overt act to support a conviction by application under section 114, P.P.C, In the same case shouting of Lalkara was held to have effect as a further overt act or abetment. The facts of this case are distinguishable from the facts of the instant case. In this reported case the abetment attributed to the accused had occurred prior to commission of the offence and, therefore, the accused's mere presence at the time of, incident was considered as sufficient overt act to support the conviction. Its the instant case the applicant was not privy to any abetment or conspiracy preceding the actual commission of the offence. Moreover as pointed out above the Lalkara attributed to the applicant and co‑accused jointly was not of such a nature as to induce belief that they meant to commit murder. Accordingly above authority is also not applicable in the instant case. To re‑inforce his arguments the learned counsel has relied upon the case of Muhammad Nazir v: The State 1984 S C M R 206 in which accused was charged for dealing blows to deceased on his head in the F.I.R. The medical evidence showed that deceased died of the head injuries. The petitioner who was not attributed the fatal blow was admitted to bail. In another case of Muhammad Amir and 2 others v. The State 1985 S C M R 565 relied upon by the learned counsel for the applicant, the injuries attributed to the petitioner were not substantiated by medical report and bail was granted to him. In the present case the fatal injuries are attributed to co‑accused. As pointed out above the applicant did not even share common intention to cause such injuries. Accordingly this is a fit case for further enquiry. The learned Asstt.A.‑G. has no objection to grant of bail which was, therefore, allowed td the applicant in the sum of Rs.20,000 and P.R. of the same amount to the satisfaction of the trial Court. M.Y.H. Bail granted.