1984 P Cr (PLP)

Mian Ishfaq Ahmad for the State Hassan Shah and Imdad Hussain Shah petitioners alongwith 5 others stand charged with the murders of Ahmad Sher Shah, Sajid Shah and Mst. Zenab deceased and for murderously assaulting Yousaf Shah, Niaz Hussain, Mst. Rajan, Mst. Bakhan and Mst. Fatima Bibi with firearms, hatchets and a spear on 18th December, 1983.

2. Bail is urged on the ground that no injury to the deceased is attributed to the petitioners and that they are alleged to have caused simple hatchet injuries to Mst. Bakhan and Mst. Fatima P. Ws. Learned counsel for the petitioners has cited Muhammad Akbar and 4 others v. The State and another (1978 S C M R 7) and Khadim Hussain v. The State and another (1978 S C M R 146) in support of his contentions that a person who had not caused injuries to the deceased cannot, prima facie, be held to have committed any offence punishable with death or imprisonment for life or held to be vicariously liable for the offence of murder.

3. The motive for the offence as stated by the prosecution is that Hassan Shah petitioner alongwith others co-accused had avenged the murder of his father Jeewan Shah by causing the deaths of Ahmad Sher deceased and his relatives who alongwith others had been challaned for the murder of his father. It is further alleged that the present petitioners while armed with hatchets went to the cattle-shed of the complainant party and murdered Ahmad Sher and others and when Mst. Fatima and Mst. Bakhan P. Ws. ran towards the dead bodies of their brothers the peti tioners injured them with hatchets. In Munawar v. The State (1981 S C M R 1092) it was observed that it was entirely erroneous to think that in the case of Muhammad Akbar and 4 others v. The State and another the Supreme Court had laid down any rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at the time of considering the question of bail. It was further ruled by the Supreme Court that the question is essentially one which has to be determined on the basis of the facts of each case, available on the record at the time when the question of bail comes for consideration. And if do the allegations appearing on the record the conditions set out in the provisions of law spelling out construc tive liability are made out, then it cannot be said that the accused concerned is not guilty of the offence punishable with death or imprisonment for life.

4. Keeping in view the facts of the present case, the petitioners who are alleged to have formed an unlawful assembly and came armed with deadly weapons to the dhari of the complainant party and in pursuance of their common object caused the deaths of Ahmad Sher, Sajid Shah and Mst. Zenab and made murderous assault on 5 P. Ws. cannot be said to be A guilty of any offence punishable with death or imprisonment for life.

5. On the basis of the allegations as levelled in The F. I. R. seemingly it appears that the petitioners were sharing common object with the other co-accused to cause the deaths of Ahmad Sher etc. and the principle of vicarious liability would be applicable which disentitles them to bail a this stage. Accordingly, the petition fails and is hereby dismissed. M. Z. M. Petition dismissed.