1994 P Cr (PLP)

Ashiq Hussain Malik for Petitioners. Mirza Israr Baig for the State. Date of hearing: 4th December, 1993. Jamil Masih and Suleman Masih petitioners, who are involved in a case under section 302/324/449/34, P.P.C. arising out of F.I.R. No.334/93, dated 13-8-1993, registered at Police Station Nishatabad, Faisalabad, seek to be admitted to bail.

2. As per F.I.R., Jamil Masih and Suleman Masih were armed with a revolver and a Chhuri respectively, at the relevant time. Jamil Masih petitioner is alleged to have fired at Shafiq Masih complainant and the shot hit at his belly, whereas no overt act is ascribed to Suleman Masih petitioner.

3. Learned counsel contended that no overt act is attributed to Suleman Masih, who was allegedly armed with a Chhuri, except his presence, hence the case against him does not fall within the prohibitory clause, as it would be determined after the recording of some evidence by the trial Court, whether he actually shared common intention with his co-accused or not. With respect to Jamil Masih, learned counsel contended that only one shot has been attributed to two assailants, i.e. Jamil Masih petitioner and Daud Masih co-accused: hence it cannot be said with certainty whose shot actually hit the complainant, thus the case against him is also one of further inquiry and he too is entitled to the grant of bail. Placed reliance on 1981 SCMR 1115 and 1976 SCMR 171.

4. Learned counsel for the State assisted by the Police Officer has opposed this petition on the ground that the petitioners are nominated accused in the case which falls within the prohibitory clause. He submitted that Jamil Masih caused fire-arm injury to the complainant, alongwith his co-accused and his mere presence at the spot with fire-arm shows that he shared the common intention with the principal accused, hence the case against him falls within the prohibitory clause. With respect to Suleman Masih, learned counsel submitted that he accompanied his co-accused to the kitchen and his presence there is sufficient to attract the provision of section 34, P.P.C., so he too is not entitled to bail, as the decided case-law lays down that a person, who is present at the scene, alongwith his co-accused he too serves the purpose of the main accused by his mere presence; hence the principle of vicarious liability is applicable to is case.

5. I have heard the learned counsel for the parties and have perused the record. Jamil Masih was armed with a pistol as is apparent from the F.I.R. itself and he fired at the complainant, though it is not clear whether his fire hit the complainant or that of his co-accused Daud Masih; yet use of fire-arm by him by itself is sufficient to bring his case within the ambit of section 324/34, P.P.C., so there exist reasonable grounds to believe that he is involved in a case which falls within the prohibitory clause. The bail petition, so far as it relates to Jami1 Masih petitioner is, therefore, dismissed.

6. However, the case of Suleman Masih petitioner, who is alleged to be armed with a Chhuri, is distinguishable from the case of his co-petitioner, because there is neither any injury of sharp-edged weapon on the person of the complainant nor he has direct motive against the injured P.W. nor the principal of the College, who is the bone of contention is his relative, thus the case against him is one of further inquiry, as it would be determined after the recording of some evidence by the trial Court whether he took part into the crime or not and whether he shared common intention with the principal accused, -so Suleman Masih is admitted to bail in the sum of Rs.50,000 (fifty thousand only) with one surety in the like amount to the satisfaction of the A.C., City Faisalabad. N.H.Q-/J-66/L Order accordingly.