1988 P Cr (PLP)

Makhdoom Wali for the State. This application under section 498, Cr.P.C. has been presented on behalf of Ahmed son of Mohammad Qasim who is facing trial for an offence under section 302 read with section 34, P.P.C., vide Crime No.52/87 lodged at Police Station Gadap, Karachi. The prosecution case is that on 26‑4‑87 at about 1‑00 a.m. the complainant Muhammad son of Ladha .found that Ahmad son of Mohammad Qasim, Malook son of Abdul and Umar had caught hold of his father Ladha when all of a sudden accused Malook fired at him with a revolver which injured him at his chest. The accused could not be caught despite pursuit. The father of the complainant died on the spot. There was some dispute between Ahmed, the applicant, and the deceased on the engagement of the complainant's sister Nasima. Ahmed, the applicant, had allegedly threatened the deceased upon the breaking of the engagement, with consequences. The applicant was arrested on 26‑4‑

87. On 9‑5‑87 he also made a confession which is obviously exculpatory confession. The application presented on behalf of the applicant before the trial Court has been dismissed by an order dated 22‑11‑

87. The learned trial Court has been influenced by the fact that all the prosecution witnesses had involved the applicant in the commission of the charged offence. Without referring to section 34 PPC he has held that a prima facie case of murder of deceased Ladha has been made out against the applicant which is punishable with imprisonment for life and therefore the applicant was not entitled to be released on bail. I have heard Mr. Ilyas Khan, learned counsel for the applicant, and Mr. Makhdoom Wali, learned counsel for the State and have also perused the relevant record of the case available with the learned counsel for the State. It was contended on behalf of the applicant that the only act said to have been committed by the applicant is to catch hold of the deceased. The learned counsel emphasised that there was no injury caused to or sustained by the applicant although in the circumstances of this case he was expected to have also sustained some injury when the deceased himself had been hit by a revolver. He further submitted that the application under section 34 PPC should not be taken into consideration at this stage and it is only at the trial that it can be taken note of. Relying upon the authorities reported in 1986 M L D 2665 and 1986 P Cr.L J 2173(2) and another at page 2847 of this very authority, the learned counsel submitted that the only act attributed to the applicant was of catching hold of the deceased which was not required to be done when the co‑accused Malook, who fired at him was armed with a pistol. It has been held in 1986 M L D 2265 that the question of participation or non‑participation of an accused in occurrence in such circumstances needed further enquiry. The facts of the second abovenoted case were that the petitioner accused was stated to have allegedly held the deceased in Japha. There also the accused had not caused any injury to the deceased, as it is in the instant case. The learned singe Judge of the Lahore High Court held: "the question as to whether the petitioner shared the common intention with Anwar co‑accused who caused solitary fatal injury needs further enquiry". The bail was granted in this case also. In the third abovenoted case also the petitioner/ accused was empty‑handed and he had caused no injury to the deceased. The Court held that the question of his sharing the common. intention under the circumstances of the case needed further enquiry. Mr. Makhdoom Wali, learned counsel for the State, on the other hand, vehemently opposed the bail application. He submitted that all the three accused had come together and hence the application of section 34, P.P.C. could not be excluded even at this stage. In his submission the facts of the cases relied upon by the learned counsel for the applicant are distinguishable. He emphasised that there was a prima facie motive with the applicant to kill the deceased inasmuch as it is clearly stated in the F.I.R. that the applicant had held out threats to the deceased on account of his having broken the engagement of his daughter with the son of the applicant. He also submitted that there was a confession in this case and the obvious fact that the applicant alongwith other co‑accused had come with deadly weapon at the residence of the deceased itself shows that they had the intention to kill the deceased. At this stage Mr. IIyas Khan, learned counsel for the applicant, also drew my attention to the case of Lai Din v. Mohammad Malik and 4 others reported in 1973 P Cr.L J 624 wherein the application for cancellation of bail was rejected. The facts of that case were that the accused were alleged to have caught hold of the victim by legs and arms whereas another co‑accused had throttled the deceased While rejecting 'the application for cancellation of bail the learned Judge observed "Malik should continue on bail as the question whether section 34, P.P.C. applied or not is still to be gone into by the learned trial Judge". The bail granted to the accused who had actually throttled the deceased was, however, cancelled. I have given my earnest consideration to the facts and circumstances of the case and I am of the opinion that in view of the authorities cited by the learned counsel for the applicant, which are squarely applicable to the facts of the case in hand the applicant seems to have made out a case for being enlarged on bail. There are no circumstances justifying the conclusion ex facie that the applicant was involved in the commission of the offence as alleged by the prosecution inasmuch as neither he got any injury from the pistol fired at by deceased from such a short distance nor‑ was any incriminating article, such as the blood‑stained shirt etc, was secured from the person of the applicant. I am in agreement with the view expressed by the learned Judges in the aforesaid cases cited before me that it is a question of further enquiry as to whether section 34 would or would not be applicable in the instant case. There is only one additional factor available in the instant case and it is the exculpatory confession of the applicant. However, what value would be attached to the said confession would be for the trial Court to take into consideration at the relevant time. Under the aforesaid facts and circumstances of the case I would admit the applicant to bail subject to his furnishing a surety in the sum of Rs.25,000 with P.R. bond in the like amount to the satisfaction of the trial Court. M.Y.H./A‑254/K Bail granted.