2004 PLP 113 (YLR)

Syed Madad Ali Shah for Applicant. Muhammad Azeem Panhwar for the State. Applicant and others are facing their trial in the Court of 2nd Additional Sessions Judge, Hyderabad for an offence punishable under sections 302/34 and 337 H(ii), P.P.C. It is alleged in the F.I.R. that an altercation had taken place earlier between the parties on using of the thoroughfare. On the day of incident Hanif Khoso, applicant Mashooq Ali and co‑accused Ali Dino intercepted the complainant party. Hanif and Mashooq were armed with pistols while Ali Dino was empty‑handed. Hanif fired from his pistol directly at Muhammad who was hit and he died on the spot. Applicant Mashooq Ali fired in the air. The matter was reported to police of Bulri Shah Karim Police Station on the, same day. The applicant was arrested on 23‑9‑2001. I have heard Syed Madad Ali Shah learned counsel for the applicant and Mr. Muhammad Azeem Panhwar learned State Counsel. Syed Madad Ali Shah 'submitted that the role ascribed to the applicant Mashooq Ali manifestly demonstrates that he had no intention to kill Muhammad or cause any injury to him or to the witness as according to the case of prosecution he fired in the air, hence his guilt would call for further inquiry. He relied on 1999 SCMR 360, Muhammad Sadiq v. State 1996 SCMR 1654, Abdul Aziz v. State 1996 SCMR 1693, Mumtaz Hussain v. State 1996 SCMR 1125, Sharbat v. State 2003 MLD 1191, Shafi Muhammad v. State 1999 PCr.LJ 890 in support of his contention. Mr. Muhammad Azeem Panhwar learned State Counsel opposed the bail on the ground that the applicant had come armed with pistol and fired in the air, therefore, from his overt act is sharing is common intention can be proved. I have considered all these contentions in the light of material available on record and the case cited above. The authorities 1996 SCMR 1654, 1990 PCr.LJ 1457 were considered in 2003 MLD 1191 wherein the law regarding the constructive liability was examined considering other Supreme Court precedent also. It is an admitted position that the applicant made fires only in the air which as argued by Syed Madad Ali Shah is sufficient to display his intention not to t cause injury to any person. The authorities cited by him fully apply to the instant case. The learned State Counsel referred to Ghulam Nabi v. State 1996 SCMR 1023 and contended that in the cited case the accused armed with hatchet was refused bail by Honourable Supreme Court. On perusal of the cited judgment it is found that the three accused persons had trespassed into the house of complainant party during night hours and one of them had caused murder of an inmate of the house. I am conscious of this fact that section 460, P.P.C. comes in play in such an incident and the constructive liability of companion of an accused is established by the above provision in the given circumstances. The principle laid down‑in the said authority, therefore, cannot be applied to the instant case, as this is not a case of Qatl‑i‑Amd during lurking house trespass. In view of the above discussion I am convinced that the applicant is entitled to bail, the application is accordingly allowed. The applicant be released on furnishing surety in the sum of Rs.3,00,000 and executing P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./M‑555/K Bail granted