2012 PLP 2790 (YLR)

FAROOQ ALI CHANNA, J.

This bail application has been moved for the grant of bail to accused Muhammad Zahid, who is behind the bars in F.I.R. No.29 of 2012, Offences under sections 302, 324/34 P.P.C. of Police Station Bin Qasim.

2. As per the contents of the F.I.R. on 31-1-2012 deceased Nazeer Ahmed and accused Irshad, Zahid and Qaim Ali exchanged harsh words over the performance of their duty but were separated. On the same dayat about 4-30 p.m. all the three accused having the iron rods in their hands came on the spot. Accused Irshad caused iron rod blow on the back side of head of Nazeer Ahmed, the complainant attempted to separate them upon which Zahid caused him blow with rod on his leg and Qaim Ali also caused blow on his head. The injured were taken to hospital, after first aid they came back. Nazeer Ahmed later on succumbed to injuries on 1-2-2012 at 4-00 a.m.

3. I have heard Mr. Nasir Mehmood Mughal Advocate for the applicant. He has contended that the case is false and fabricated. He has further contended that it was accused Irshad who caused head injury with iron rod to Nazeer Ahmed which resulted his death. He has further contended that absolutely there is no allegation against the present applicant/accused Zahid that he caused any kind of injury to the deceased. He has further contended that the sole allegation against the present applicant is that he caused iron rod blow, on the legs of the complainant but this allegation does not find support from the medical evidence as the Provisional Medical Certificate of the complainant reflects only one injury on his head which is allegedly caused by another accused Qaim Ali. He has further contended that no recovery of iron rod is effected from accused Zahid as such it is a case of further inquiry. He has further contended that there is inordinate delay of 23 hours in lodging of F.I.R., hence, the involvement of the accused is afterthought, this point cannot be overlooked. He has further contended that so far vicarious liabilities are concerned the same will be determined after the trial is concluded and will not come in the way, and that a case of bail is made out. He has relied upon the cases reported in 1996 SCMR 1125 (Mumtaz Hussain and 5 others v. The State), 2007 YLR 3297 (Ghulam Dastagir and others v. The State), 2010 PCr.LJ 1619 (Abdul Aziz and another v. The State and another), 1999 SCMR 1320 (Attaullah and 3 others v. The State and another), 2010 MLD 1211 (Ismail and 3 others v. The State).

4. Mr. Zahoor Hussain Mahar advocate appearing on behalf of the complainant with the permission of the Court delivered the arguments and contended that it is a case of common intention which provides equal punishment for each accused irrespective of their role taken in the incident. He has further contended that the accused is nominated in the F.I.R. with the specific role. The delay in lodging of F.I.R. has been explained properly. His further contention is that the motive of the incident was the exchange of harsh words took place during same day between the deceased and the accused persons, which motive has not been denied at any stage by the accused as such no case of bail is made out. He has relied upon the cases reported in 2010 PCr.LJ 1170 (Irfan Ali and another v. The State), 2011MLD 1171 (Mulo Ahmed v. The State), 2011 PCr.LJ 1479 (Nadeem alias Athar v. The State), 2012 YLR 983 (Ibrahim v. The State), 2011 YLR 2270 (Zulfiqar Ali v. The State), 2012 PCr.LJ 690 (Kadir Bux alias Porho v. The State), 2011 YLR 1774 (Fateh Muhammad v. The State) and 2012 YLR 684 (Imran Shafique v. The State).

5. Mr. Shahid Ahmed Shaikh, A.P.G. adopted the arguments delivered by the Advocate for the complainant adding that while considering the bail application the entire prosecution case is to be taken into consideration as whole and not in pieces as per role assigned to each accused.

6. I have considered the arguments and perused the record. The complainant being injured, his presence at the time of occurrence at place of scene is free from doubt. He has nominated the accused with specific role of causing rod blow to him due to his intervention to rescue the deceased. Not mentioning the injury on legs in medical report is immaterial as sometime such type of blow leaves no mark, abrasion or even swelling, and as such apparently there is no inconsistency between the ocular version and the medical evidence. Non-recovery of iron rod from the accused will be of no help to him in presence of ocular testimony which is in the line of Medical Certificate. So far the question of vicarious liabilities is concerned, that is to be ascertained from the conduct and overt acts of the accused. In the instant case it is alleged that all the three accused came holding iron rods in their hands which shows their common intention to fight with deceased and which fight ultimately took place and resulted the death of deceased Nazeer Ahmed hence common intention as provided under section 34, P.P.C. cannot be ignored in this case irrespective of allegation of causing fatal blows to the deceased by one or all accused. As such, prima facie there appears the reasonable grounds for believing the involvement of the accused in this case which provides punishment of death or life imprisonment, hence I dismiss the bail application. The observations are tentative in nature for the purpose of this bail application, and will not prejudice the case of either side. MWA/M-76/K Bail refused.