2002 PLP 91 (YLR)

Date of hearing: 22nd November, 2001. These two Bail Applications arise out of the same set of facts and hence I propose to dispose them of vide this common order. The brief facts of the matter per F.I.R. No. 41 of 2001 of Police Station Talhar, District Badin are that on 7-6-2001, the complainant was present along with his cousin Faiz Muhammad Shah a candidate for the post of Councillor, Union Council, at Polling Station No. 5, Peeru Lashari when at about 1615 hours Ali Nawaz, Amin, Muhammad Hassan, Ibrahim, Lakhano and Pir Muhammad came there and told the complainant party not to cast the ladies vote. On this Faiz Muhammad Shah stated that it was their right to do so upon which Lakhano and Pir Muhammad instigated the other accused to kill the Complainant Party on which Ali Nawaz, Amin, Ibrahim Khaskheli, Muhammad Hassan and Hashim threw brick bats at Faiz Muhammad Shah and Aali Shah and as a result both of whom were injured and were taken to Civil Hospital Badin. Faiz Muhammad Shah expired on the way, hence the complaint. On the basis of the foregoing facts Mr.Agha Khuda Bux for the Applicant/ Accused Lakhano in Criminal Bail Application No. 508 of 2001 has submitted that his applicant has only been accused of instigation and hence his case was of further inquiry since at this stage per settled law vicarious liability cannot be attributed to the applicant. In support of his submissions he has relied upon: Zulfiqar v. The State (2001 YLR 2074), Abdul Ghaffar v. Munir and others (1981 SCMR 504), Muhammad Anwar v. The State (1981 SCMR 850) and Muhammad Sadiq v. The State (1996 SCMR 1654). Mr. Muhammad Ishaque Khoso learned counsel for the applicants in Criminal Application No. 517 of 2001 has submitted that the case of applicant Pir Muhammad is on the same footing as that of accused Lakhano since admittedly both are alleged to have instigated the others to kill the complainant party. Secondly, per learned counsel as regards other applicants, at this stage, it is not at all ascertainable as to who caused the fatal injury to the deceased since, per the Medical Report, he suffered only one injury on his head whereas the other person who was injured viz. Aali Shah received one injury on his chest and one on his head. Consequently, as the number of injuries are less than the number of accused it is yet to be determined as to who caused the fatal injury to the deceased and the other injuries to Aali Shah, which makes the case of the other applicants in Criminal Bail Application No. 517 of 2001 also one of further enquiry. In support of his submissions learned counsel has relied upon: Gul Hassan v. The State (2001 PCr.LJ. 1491), Muhammad Aslant v. the State (1997 SCMR 251), The State v. Aziz (PLD 1985 Kar 27), Mumtaz Hassan v. The State (1996 SCMR 1125) and Hafiz Abdul Hamid v. The State (1988 PCr.LJ. 1783). Learned counsel has submitted that one of the accused Muhammad Aslam also sustained an injury and for which the accused party went to the police station to lodge their counter-version, however, since the same was not cognizable it was recorded as such. In support of this submission learned counsel has relied upon the medical certificate of accused Muhammad Aslam. Finally learned counsel has submitted that the only independent witness viz. Usman Mallah in his 164 Cr.P.C. statement has deposed that a fight took place between the two parties, as a result of which one person died from the complainant party and another was injured. Consequently, per learned counsel there could not be any question of common intention on the part of the applicants to do away with the complainant party as admittedly all of them were empty handed and there was no question of pre-planning etc. On the other hand, Mr. Syed Madad Ally Shah for the complainant has submitted that firstly the F.I.R. was promptly lodged in as much as the offence took place at 1613 hours and it was reported at 1713 hours. Secondly, learned counsel has submitted that the presence of the accused cannot be denied as they are related to each other and they had come with the avowed intention of preventing the complainant party from casting the Ladies vote so that their Candidate could win. Hence the common intention/objective of the complainant party was verlt much there and consequently all of them can be held vicariously liable for each other's acts which is quite obvious even at this stage. In support of this submissions learned counsel has relied upon: Nazar Muhammad v. The State (PLD 1978 S.C. 236), Munawar v. The State (1981 SCMR 1092), Muhammad Rashid v. The State (1979 SCMR 92), Imam Bakhsh v. Muhammad Bakhsh (1979 SCMR 197), Ghulam Nabi v. The State (1996 SCMR 1023), Shahzaman v. The State (PLD 1994 S.C. 65), and Muhammad Akram v. The State (2001 PCr. LJ. 185). The learned A.A.G. has submitted that per the allegations contained in the F.I.R. Lakhano and Pir Muhammad had instigated the others to do away with the complainant party. As the accused party were not armed hence there could not be any question of common intention/common objective since every thing happened on the spur of the moment. Consequently, learned A.A.G. has conceded to the grant of bail to accused Lakhano and Pir Muhammad but has opposed it for other accused since their case was on a different footing as all of them allegedly participated in the crime in question. In support of his submissions he has relied upon: Gulu Khan v. Gul Daraz Khan (1995 SCMR 1765). I have heard all learned counsel as well as the learned A.A.-G. and my conclusions are as follows: - It would appear that the incident leading to the death of Faiz Muhammad Shah and injury to Aali Shah took place as a result of a dispute between the parties regarding casting of the ladies vote. It would also, prima facie, appear that this dispute arose at the spur of the moment as a result of which a free fight took place. This conclusion can tentatively be drawn at this stage since the accused were not armed with any weapon etc., and used bricks bats, which were possibly available at the place of incident to cause the injuries to the complainant party. In these circumstances, I am of the view that the issue of vicarious liability particularly as regards accused Lakhano and Pir Muhammad who allegedly instigated the other accused to kill the complainant party can only be established by the trial Court. As regards the case of the other applicants viz. Aali Nawaz, 'Nrnin, Ibrahim, Khaskheli, Muhammad Elassan and Hashim, it would again be seen in at at this stage it is difficult to establish as on which one of them caused the fatal injury to the deceased and for that matter injuries to Aali Shah. Such a tentative conclusion is supported by the Medical Report of the deceased according to which he suffered only one injury on his head whereas Aali Shah received one injury on his chest and one on his head. Obviously, all the aforementioned accused could not have caused these three injuries as stated above. Consequently, in view of the circumstances, as already concluded by myself, the incident took place on the spur of the moment and injuries were caused to both the sides, the vicarious liability of the accused who are alleged to have thrown bricks bats at the complainant party also becomes one of further enquiry. As far as the case of Lakhano and Pir Muhammad are concerned who allegedly only instigated the others and did not actually participate in the crime, reference can be made to Muhammad Sadiq v. Thcttate and Mumtaz Hussain v. The State (supra) wherein the Honourable Supreme Court has opined that mere allegations of instigation for commission of a crime by an accused would not come in the way of his being denied bail provided he had not actually participated in the crime. In fact in Muhammad Sadiq v. The State (supra) the persons who were given bail allegedly were allegedly armed and kept on firing ineffectively while raising cries etc. Admittedly, in the present case both the applicants Pir Muhammad and Lakhano were un-armed. As regards the authorities cited by the learned counsel for the complainant in my humble view, the same are distinguishable since in those cases the accused had come with the avowed intention of doing away with their victims in which event the question of vicarious liability was considered and it was held that on the face of the record all the accused could, prima facie, be held vicariously liable for each other's facts. Reference in this regard can be made to Nazar Muhammad v. The State, Munawar v. The State, Muhammad Rashid v. The State. Imam Bakhsh v. Muhammad Bakhsh and Ghulam Nabi v. The State (supra). In all these cases decided by the Honourable Supreme Court the common factor is that the accused had allegedly come fully prepared to do away with the deceased and no fight was put up by the complainant party at all. However, in the present case as already opined by myself it appears, prima facie, that it is of two versions since admittedly one person from the accused party Muhammad Aslam had also sustained an injury but the Police did not lodge any F.I.R. as it was not cognizable. Prima facie, this appears to be correct since the Medical Certificate of accused Muhammad Aslam is available on the record. In this connection, reliance can also be placed upon: Muhammad Aslam v. The State (supra) wherein precisely the same facts and circumstances as in the present case the Honourable Supreme Court enlarged the accused on bail as the case was of two versions. The foregoing are the reasons for the short order passed by myself wherein bail was granted to all the applicants in these two bail applications. N.H.Q./L-24/K Bail allowed.