1985 P Cr (PLP)

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/307/323/148/149‑‑Bail‑ Co‑accused‑‑Facts and arguments advanced on both sides entitling co‑accused to bail‑‑Bail granted. (c) Penal Code (XLV of 1860)‑‑-- ‑‑‑S. 302/307/323/148/149‑‑Common object‑‑Intention and common object, held, are such things which even if not pre-planned can be formed at spur of moment‑‑It is conduct of persons so acting from which it is to be inferred.‑‑[ Common object]. M. Naeemullah Khan Sherwani for Petitioner. C.M. Latif for the State. According to a case registered by the police of station Philora District Sialkot vide F.I.R. No. 122, dated 10‑6‑1983 against the petitioner and four others under section 302/307/323/1481149, P.P.C. at the instance of Muhammad Siddiq complainant, in village Rurki on 7‑6‑1983 at 10‑00 a.m. there took place a dispute as to the use of thresher. Karamat and others were already threshing their wheat with the thresher wanted by the complainant party. On exchange of hot words the petitioner and the co‑accused flared up. Lal Din accused raised a Lalkara urging as not to spare the complainant party and that they would not have the thresher. Muhammad Ashraf took hold of a Sarya, the petitioner lay his hand on a having instrument with iron fingers. Muhammad Aslam took hold of a Kassi and Karamat got hold of a Sarya which was lying on the ground near the thresher. Muhammad Aslam caused a blow from the blunt side of the Kassi to Muhammad Latif deceased which hit him on the back side of his head. Muhammad Ashraf caused a Sarya blow hitting the deceased on the front parietal region. Karamat accused gave a blow which hit the deceased on the left side of the head. After receiving those injuries the deceased fell on to the ground. When the complainant intended to intervene he was attacked by the petitioner who gave a blow with having instrument on the right ear of the complainant. Thereafter Muhammad Aslam, Muhammad Ashraf, Karamat and the petitioner caused injuries with their respective weapons to the complainant, Muhammad Latif deceased and Muhammad Aslam collectively. On the hue and cry of the complainant party Rehmat and Muhammad Sadiq appeared at the scene and with a difficulty got them freed from the hands of the assailants. After that other persons were also attracted to the scene. Bashir Ahmad carried the deceased to the hospital where he died at about 2‑45 p.m. on 11‑6‑1983.

2. The petitioner moved the Sessions Court for bail which was refused on 12‑12‑1983 by Rai Muhammad Zafar Bhatti, Additional Sessions Judge, Sialkot.

3. The learned counsel for the petitioner has contended that there is a delay of three days in the lodging of the F.I.R. which has not been satisfactorily explained. The incident did not take place as a result of some pre‑planned action but it was a sudden development which took place as to the use of a thresher, in view of which it is going to be a case of individual liability and not that of vicarious one, assessing as such the petitioner will only be liable for a simple injury. The fatal injury caused on the head has been attributed to Muhammad Ashraf while the other injuries on the head have been attributed to Karamat and Aslam. The role attributed to the petitioner qua the deceased is that when the deceased had fallen to the ground then the petitioner in the company of Ashraf, Karamat and Aslam caused injuries to the deceased, Muhammad Siddiq complainant and Muhammad Aslam, so according to the leaned counsel no specific injury has been attributed to the petitioner vis‑a‑vis the deceased. The injury attributed to him as having been caused to the complainant on his right ear has been declared as simple. The injury allegedly caused by him to Aslam on the left upper arm has also been returned as simple. The petitioner is in the judicial lock‑up since June, 1983 and the challan has not yet been submitted in the trial Court.

4. The learned counsel for the State has resisted the grant of bail to the petitioner on the ground that the name of the petitioner is mentioned in the F.I. R. He was armed with a hoving instrument and alongwith others inflicted injuries to all who were present there meaning thereby the deceased, the complainant and Muhammad Aslam. The deceased suffered in all 13 injuries which number is quite commensurate with the persons involved in the case. Though no specific injury has been attributed qua the deceased to the petitioner yet his participation is there and it is mentioned in the F.I.R. that he alongwith others caused injuries to the deceased and others. The hoving instrument has been recovered at his instance. An intention or common object is such a thing which even if not pre‑planned can be formed at the spur of the moment. It is the conduct of persons so acting from which it is to be inferred and in the circumstances of this case it can be easily inferred that they had developed an object at the moment and pursued that, as such, the petitioner is not entitled to the grant of bail.

5. After weighing the facts and the arguments advanced on both the sides Khushi Muhammad is admitted to bail in the sum of Rs. D 25,000 (Rupees twenty‑five thousand) with one surety in the like amount to the satisfaction of the Assistant Commissioner, Sialkot. M.Y.H. Bail disallowed to accused, and allowed to co‑accused.