2005 PLP 1531 (YLR)

Learned counsel for the Applicant has firstly submitted that per the F.I.R. and the police statements of the eye-witnesses, the only role attributed to the Applicant is that of ineffective firing i.e. his pistol shot had missed the Complainant as the latter had saved himself. Secondly, in so far as the Applicant's involvement in the murders of deceased Gul Muhammad and Shadi Khan is concerned, this would be a matter of further inquiry as no overt act has been committed by the Applicant in such crimes for which Accused Qurban Ali and Mubarak Ali have been nominated. Next, per learned counsel, no recovery of any pistol empty has been shown by the prosecution, hence again the case of Applicant would be one of further inquiry, as per the F.I.R. he was armed with a pistol. So also no recovery has been made from the Applicant himself. He relied upon Muhammad Sadiq v. State (1996 SCMR 1654), Moin Butt v. State (2004 PCr.LJ 545), Muhammad v. State (1998 SCMR 454), Muhammad Haroon v. State (1994 SCMR 2161) Passand v. State (2003 PCr.LJ 747), Peeral v. The State (2001 MLD 631), Aziz v. The State (2001 PCr.LJ 214), Shabbir v. State (2003 MLD 1715), Yaroo v. The State (2004 SCMR 864), Shamsuddin v. The State (PLD 1996 Kar. 382), Muhammad Sadiq v. The State (1995 SCMR 1130) Ataullah v. The State (1999 SCMR 1320), Shafi Muhammad v. The State (1999 PCr.LJ 890), Haleem v. The State (2001 YLR 769) and Mehar v. The State (2000 PCr.LJ 1178). On the other hand, Mr. Allah Bachayo Soomro, appearing for the Complainant has submitted that the Applicant and the other co-accused had come to the lands of the deceased while fully armed for the purpose of killing them due to enmity over land. As much has been stated in the F.I.R. as well as the police statements of the eye-witnesses. Consequently, per learned counsel, since the co-accused Qurban Ali and Mubarak Ali did kill deceased Shadi Khan and Gul Muhammad, the Applicant could also be held vicariously liable for the murder of these two persons. As far as the Applicant vis-a-vis the complainant is concerned, per learned counsel, he did fire at him with no other intention except to kill him, and hence he can be punished under section 324, P.P.C. It is another matter that fortunately the Complainant saved himself by ducking down on the ground. Learned counsel, therefore, opposes the grant of bail. He relied upon Haji Punhal v. State (PLD 2002 Karachi 99), Jehangir v. The State (1987 SCMR 1154) and Naseer Ahmed v. State (PLD 1997 SC 347). Learned State Counsel has supported the arguments of Mr. Allah Bachayo Soomro on the basis that three eye-witnesses support the F.I.R. in their sections 161 and 164, Cr.P.C. statements. I have heard all the learned Counsel and my conclusions are as follows. It would be seen that no role has been given to the Applicant as regards the murder of the deceased by the P.Ws. in their police statements or by the complainant in the F.I.R. Hence, the common intention of the applicant in these crimes would be one of further inquiry per settled law. However, the applicant has been given the role of firing with his pistol at the complainant, which shot missed, as the complainant had ducked down. As much has been stated in the F.I.R. by the complainant and supported by all three P.Ws. in their 161 and 164, Cr.P.C. statements. In my opinion this would not be a case of ineffective firing which per settled law means firing without any target i.e. in the air etc., per the settled law handed down by the Honourable Supreme Court of Pakistan in Faraz Akram v. the State (1999 SCMR 1360), Aftab Hussain v. the State (2000 SCMR 1467) and Naik Muhammad v. the State (2000 PCr.LJ 1299). The cases cited by Mr. Palejo in support of the plea of ineffective firing, in my view, are distinguishable on facts from the present case. In Muhammad Sadiq v. State (supra) the Honourable Supreme Court granted bail to the Accused as they had not used their weapons at all to injure the deceased or the injured and hence this was a case of ineffective firing. Consequently, the accused's common intention in the murder of the deceased was held to be one of further inquiry. Similarly in the case of Muhammad v. State (supra), bail was granted by the Honourable Supreme Court as this was again a case of ineffective firing. Again, in the case of Shafi Muhammad v. The State (supra), a learned Division Bench of this Court granted bail to the co-accused as he had ineffectively fired in the air. Nevertheless, it would also be seen that the applicant did not repeat his fire upon the Complainant although the latter was completely at his mercy being unarmed. Hence, prima facie, it appears that the applicant did not have the intention of killing or injuring the complainant. I may add here that intention is a subjective state of mind and indeed difficult to decide at the bail stage unless there is compelling evidence available for a positive deduction. In the circumstances of the case, I am, therefore, of the opinion that it is one of further enquiry. For all the foregoing reasons I would allow this bail application provided the Applicant submits solvent surety in the amount of Rs.2,50,000 (rupees two lacs fifty thousand) and P.R. bond in the like amount to the satisfaction of the learned trial Court. N.H.Q./N-57/K Bail allowed.