1989 P Cr (PLP)

Habibullah Shaikh for the Complainant. Amanullah Qureshi for A. A. G. for the State. The fourteen applicants are aggrieved by the order passed by the learned IVth Additional Sessions Judge, Sukkur, dated 17‑9‑1988, whereby their bail application filed before the learned Judge was dismissed. The prosecution case, briefly, is that one Jaffar Ali son of Attaullah Tilli, one of the applicants in this case had been killed about six months prior to the occurrence and the applicants had suspected that injured Ch. Asghar Ali had a hand therein. Consequently, the allegations are that in 26‑6‑1988 at about 1‑30 p.m. while Ch. Asghar Ali was returning from his lands on a horseback, all the fourteen applicants, thirteen out of whom were armed with guns and one of them with a rifle came out and fired shots at Ch. Asghar Ali with a common intention to cause his death, as a result of which the latter sustained seven injuries. The horse which was being ridden by the injured also got injured during the incident. Subsequently, three of the applicants namely Molvi Sardar, Attaullah and Ubedur‑Rehman alongwith co‑accused Ubedullah and Saifullah who had concealed themselves near the place of the incident fire shots at Ahsanullah, the nephew of the complainant, as a result of which he died. Consequently, all the applicants have been booked to face charges under sections 302, 307, 147, 149 and 428, P.P.C. and 13‑h of Arms Ordinance. I have heard Mr. Abdul Sattar and Mr. Malik Ghulam Kadir, learned counsel, who have appeared on behalf of the applicants and Mr. Habibullah, learned counsel for the complainant in the case. It has been mainly argued by the learned counsel appearing on behalf of the applicants that according to the case of the prosecution, although twenty accused are said to have taken part in the incident but only one person sustained injuries during the first incident and another during the second, consequently, according to the learned counsel, the possibility of exaggeration and inclusion of the names of innocent persons in the F.I.R. cannot be ruled out. Additionally it has been argued that there was no material in the hands of the prosecution from which it can be established that the applicants shared the common intention with the accused, who actually fired shots from their guns. It has also been contended that only two of the accused namely Ubedullah and Abdul Razzaq are said to have been armed with rifles and tic rest of the accused are said to have been armed with guns and the injuries received by Ahsanullah admittedly could not have been caused by a shot fired from any gun. Reliance has also been placed by the learned counsel on Muhammad Amin v. The State 1987 P Cr. L J 1404, Jan Muhammad v. The State 1987 P Cr. L J 276, Ch. Muhammad Anwar Samma v. The State 1976 S C M R 168, Jaffar and others v. The State 1980 S C M R 784 and Abdul Jabbar and another v. The State 1977 S C M R

50. Except in the last case, where bail way; granted by the Supreme Court to a person who was found to be seventy years of age on the ground that his case fell within the purview of the proviso to section 497(1), Cr.P.C. the view taken in the above cases more or less was that in absence of any material to establish that the accused shared any common intention with such co‑accused, who fired the fatal shots, he would be entitled to bail. Mr. Habibullah Shaikh, learned counsel for the complainant, on the other hand has vehemently opposed the bail application, as according to him, it was immaterial which of the accused fired the fatal shots. Learned counsel has argued that since, according to the prosecution case the accused were members of an unlawful assembly which had a common intention to cause the death of Ch. Asghar Ali and Ch. Ahsanullah, all the applicants would share the same liability irrespective of the fact whether any specific role had been assigned to them by the prosecution or not. Reliance has been placed by the learned counsel on Munawar v. The State 1981 S C M R 1092 and Nazar Muhammad v. The State P L D 1978 SC

236. In the first case, the petitioner before the Supreme Court was found to be a member of an unlawful assembly which had allegedly shared common intention with others to have caused the death of the victim of the assault. According to the case of the prosecution, although the shots allegedly fired by the applicant from his gun had not hit the deceased but nevertheless the Supreme Court declined to grant bail to the applicant holding as follows:‑ "We would like to clarify that in the case cited above Muhammad Akbar and others v. State it was never intended to lay down as a rule of law that the Courts at bail stage should not even prima facie examine the question of constructive liability in the case where the accused is not attributed any injury to the deceased and is alleged to have caused injuries to the P.Ws. As defined in section 141, Cr.P.C. an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing it, inter alia, is to commit any mischief or criminal trespass or other offence. There are other provisions such as sections 34, 1(y) and 102‑B of the Penal Code which envisage the rule of constructive suability. The Courts on the basis of the material placed before them, such as F.I.R., statements recorded under section 161, Cr.P.C. are fully justified, even at the bail stage, to go into the question whether a case of constructive liability is made out." Similar views were expressed by the Hon'ble Supreme Court in the case of Nazar Muhammad P L D 1978 SC 236 the second case upon which Mr. Habibullah Shaikh has relied, as it was observed therein:‑ "It will be seen, therefore, that this case cannot be cited as an authority for the legal proposition that accused persons who do not cause any injury to the deceased cannot be burdened with vicarious liability under section 34 or 149 of the Pakistan Penal Code. Such a statement would amount to a negation of these two provisions of law." Turning to the facts of the present case, it is alleged that all the applicants had armed themselves with fire‑arms and were waiting outside the house of complainant Manzoor Ahmed and as soon as the latter was seen approaching his house, the applicants fired from their weapons and injured him. The allegations further show that the three of the applicants namely Molvi Sardar, Ataullah and Ubaidur Rehman had again concealed themselves near the place of the incident and when deceased Ahsanullah arrived there, they fired from their weapons and injured him as a result of which he died. No doubt, the injuries caused to injured Chaudhry Asghar Ali or Ehsanullah have not been specifically attributed to the applicants but the circumstances clearly indicate that they, alongwith their co‑accused, had formed an unlawful assembly after arming themselves with deadly weapons and the common object of which was to cause injuries to Chaudhry Asghar Ali and Ehsanullah. Consequently, in my opinion, the cases relied upon by the learned counsel for the applicants are distinguishable as it cannot be said under the circumstances that the applicant did not share any common intention with the other co‑accused to whom specific role has been assigned. The next argument that applicant Molvi Sardar is an old man of eighty years and is thus entitled to bail according to the exception to section 497(1), Cr.P.C. is also not sustainable. No doubt, subsection (1) of section 497, Cr.P.C. makes an exception in the case of any person, who is sick or infirm but sickness or infirmity must be established by independent evidence. A person on account of E his advanced age does not necessarily become sick or infirm. No doubt in the case of Abdul Jabbar to which I have just referred, the applicant was granted bail by the Supreme Court on the ground that he was seventy years of age but in Hakim Ali v. The State 1979 S C M R 114, the Supreme Court declined to grant bail to the applicant, who was seventy or eighty years of age as he had failed to establish that he was a sick or infirm person. A person after attaining the age of seventy or eighty years or more may become infirm on account of such age, but the question whether a person is infirm or sick is a question of fact and the same can only be C determined according to the circumstances of each case. In the instant case, no material has been laid before this Court to show that applicant Molvi Sardar is a sick or infirm person. The upshot of the above discussion is that I find no reason to interfere with the order of the learned trial Court and this bail application is dismissed. M.B.A./G‑92/K Application dismissed.