ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. B.A No. 1130 of 2011.
Arshad. …………...…..…………...….……………….….Applicant
The State…………………….….…….………….………..Respondent
Mr. Farman Ali Kanasro Advocate for the Applicant.
Mr. Zulfiqar Ali Jatoi, DPG for the State.
Date of hearing: 18th May, 2012.
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Muhammad Ali Mazhar J., The applicant has applied post arrest bail in Crime No. 49 of 2011, lodged under Sections 302, 324, 148 & 149 PPC, at Police Station, Baberloi.
2. The facts of prosecution case are that complainant Ghafoor lodged the FIR on 13.4.2011 in which he stated that his sister Azeema was married with Sher Mohammad Rind, who was martyred while he was on his duty and the Government of Sindh announced compensation of Rs. 20,00,000/- for his legal heirs. Brothers of deceased were threatening to Mst. Azeema that if she will take money, she will be killed. On 13.4.2011, complainant, his brothers Zaheer Ahmed and Riaz Ahmed, mother Mst. Manzooran and sister Mst. Azeema went to receive money in the Wagon from National Bank, Thehri Branch and when they reached in front of the bank, they saw Mohammad Ibrahim, Nazar Mohammad, Ghulam Akbar, Arshad, Ashraf and one unknown person, duly armed with pistols, after getting down from the motorcycles, the accused Mohammad Ibrahim said to Mst. Azeema that he had forbidden her not to receive money and by saying so accused Mohammad Ibrahim fired directly upon Mst. Azeema with intention to commit her murder which hit her and she fell down while crying. Accused Nazar Mohammad fired directly with intention of murder upon mother of complainant, she also fell down while raising cry and other accused persons also fired directly on complainant and his brothers with intention of murder, but luckily they saved themselves by taking shelters. Thereafter, all accused persons went away towards Khairpur side on their motorcycles. Complainant saw that Mst. Azeema sustained fire arm injuries on her back and was through and blood was oozing and she was dead. Mst. Manzooran also received fire arm injury on her left arm from front side.
3. The learned counsel argued that the applicant had moved bail application in the trial court which was dismissed on merits by learned Sessions Judge, Khairpur, vide order dated 25.8.2011. He further argued that the applicant is innocent and has been falsely involved. No overt act has been attributed against the present applicant and so far as the question of common intention or preconcert is concerned, it can only be decided after recording the evidence. He further argued that the specific allegation of firing is against Muhammad Ibrahim and Nazar Muhammad, who made direct firing upon Mst.Azeema and Mst.Manzooran. He further argued that all the prosecution witnesses are related to the complainant and there is no independent witness of the incident. In support of his arguments, the learned counsel relied upon the following case law:-
1. 2004 SCMR 864 (Yaroo v. State) in which it was held that no injury whatsoever to the deceased had been attributed to the accused and accused was in jail for the last more than one year, hence the hon’ble Supreme Court granted bail to the applicant.
2. 2000 SCMR 1854 (Farzand Ali v. Taj and others) in which it was held that the accused persons had only ‘scotis’ with them and did not cause any injury to the deceased. Only simple injuries were caused by accused to victim, hence the application for cancellation of bail was dismissed by holding that the High Court rightly exercised its jurisdiction.
3. 1998 SCMR 454 (Muhammad v. State) in which it was held that accused had allegedly made ineffective firing and no injury was attributed to him during the occurrence. It was further held that the case against the accused, therefore needed further inquiry and accused was admitted to bail.
4. 2006 P.Cr.L.J. 629 (Tasaver and another v. State) in which it was held that no role was ascribed to the accused except making ineffective firing at the time of occurrence. Accused had not used their weapons at all to cause any injury either to the deceased or to any witness. Intention being always subjective state of mind was difficult to be determined at this stage in the absence of a compelling evidence for positive deduction. Case of accused thus needed further inquiry and bail was granted to him.
5. 2006 P.Cr.L.J. 1611 (Waryam v. State) in which it was held that the only allegation against accused in FIR was his presence at the time of murder and firing in the air and no other overt act had been attributed to him. Allegation in FIR was that accused though armed with gun had not caused any injury to deceased. Presence of accused at the place of wardat and his role in the commission of murder of deceased would be decided at the stage of trial. Case of accused was considered to be a case of further inquiry with regard to determine his vicarious liability and sharing common intention with other accused. Consequently, the accused was released on bail.
4. Conversely, the learned DPG argued that sufficient incriminating material is available against the present applicant. He further argued that the incident was immediately reported within 45 minutes, one lady expired and one was injured. In the statement recorded under section 161, Cr.P.C., Mst. Manzooran fully implicated the present applicant and other eyewitnesses also supported the prosecution case. Four empties were recovered from the place of incident. He further argued that blood stained earth of deceased and the injured was also taken. He opposed the bail and relied upon the following case law:-
1. 2008 P.Cr.L.J. 1555 (Muhammad Imran and others v. State) in which it was held that no rule of law existed to be effect that a person who did not cause injuries to the deceased could not be burdened with constructive liability at the time of considering the question of bail which had to be determined on the basis of the facts available on record. If on the allegation appearing on the record the conditions set out in the provisions of law spelling out constructive liability were made out, then it could not be said that the accused were not guilty of an offence punishable with death or imprisonment for life. Question of vicarious liability for murder could be considered even at bail stage in the light of the material on record and the accused found to be vicariously liable would be disentitled to bail.
2. 2000 SCMR 78 (Muhammad Bashir v. State) in which it was held that allegations of common intention, prima facie, were reflected from the averments of FIR and attending circumstances. Accused had allegedly made firing with a carbine at the time of occurrence, whereby a prosecution witness was injured, hence bail was declined.
5. The prosecution case is that Mst. Azeema went to receive compensation amount and brothers of deceased Sher Muhammad threatened Mst. Azeema, widow of Sher Muhammad Rind not to collect the amount otherwise she would be killed. On 13.04.2011, the complainant, his brothers Zaheer Ahmed and Riaz Ahmed, mother Mst. Manzooran and sister Mst. Azeema went to collect the compensation money in the wagon from National Bank Thehri Branch and when they reached to the bank, they saw the accused persons on motorcycles. Muhammad Ibrahim directly fired upon Azeema while Nazar Muhammad directly fired upon Manzooran. It is further stated in the FIR that other accused persons also fired upon the complainant and his brothers and they luckily saved. Mst. Azeema expired and Mst. Manzooran received fire arm injuries. Four empties were recovered from the place of incident, blood stained earth of deceased and injured were also taken. The matter was immediately reported to the police within 45 minutes. Nothing has been shown by the applicant that he has been falsely implicated or there was enmity between the parties due to which the applicant has been falsely implicated in this case. All eyewitnesses supported the version of complainant. During interrogation, applicant voluntarily produced crime weapon along with magazine and two live bullets from his house.
6. The crux of the arguments of the learned counsel of the applicant is that since no overt act has been attributed to the present applicant, hence he be released on bail. On the contrary, in the FIR it is clearly mentioned that all accused persons under an unlawful assembly and with their common intention and preconcert, came at the place of incident to restrain Azeema from collecting the compensation amount, therefore, the argument advanced by the learned counsel that since the applicant made only aerial firing, he cannot be held responsible for common intention is a misconceived arguments. It is not a case of offence committed under the sudden provocation or a case of sudden fight without any preplanned concert or object. What was argued by the learned counsel that though the applicant was present but no overt act has been attributed to him and at the best, allegation if any against him is only of aerial firing which can only be decided at the time of trial. No doubt the question of common intention or preconcert has been considered in some cases a question of further inquiry but there is no hard and fast rule nor it is a settled principle of law that question of common intention can not be taken into consideration while deciding the bail application. It is also well settled that the court has to decide each case on its own facts and circumstances. It is general principle that a person is liable for what he himself does and not for what other persons do but Section 149 P.P.C is an exception to the general rule in that it makes a member of an unlawful assembly vicariously liable under the circumstances mentioned in the section for an offence committed by another member of the assembly.
7. I am of the tentative view that all accused persons in a preplanned manner had committed the murder and shared common intention with principal accused and facilitated the murder. If several persons would unite with common purpose to do any criminal offence, all those who assisted in the completion of their object, would be equally guilty. Reasonable grounds are available to believe that applicant shad shared common intention with all the co-accused in the commission of crime. Though the allegation against the present applicant is that he made aerial firing but his undeniable presence at the place of incident, duly armed with weapon, had shown his motive of preplanned concert. The case was not a case of sudden provocation rendering the matter one of further inquiry. No explanation whatsoever was rendered to justify the presence of the applicant at the place of occurrence. Reference can be made to an order passed by me in another bail application which is reported in 2011 MLD 1171 (Mulo Ahmed v. State).
8. The foundation for constructive liability is the common intention in meeting accused to do the criminal act and for doing of such act in furtherance of common intention to commit the offence. It was not required that a person should necessarily perform any act with his own hand. If several persons had the common intention of doing a particular criminal act and if, in furtherance of their common intention, all of them joined together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hands, do the act but if he helps by his presence or by other act in the commission of an act, he would be held to have himself done that act. Principle of vicarious liability would be looked into even at bail stage, if from the FIR accused appeared to have acted in preconcert or shared to community of intention with his co-accused who caused fatal injury to deceased and could be saddled by constructive or vicarious liability. Court on the basis of material placed, such as FIR and the statements recorded by the police even at bail stage consider the question whether the case of constructive liability was made out or not. Paramount consideration is whether accused is member of unlawful assembly or whether the offence had been committed in furtherance of common object. The case law relied upon by the learned counsel for the applicant is distinguishable to the facts and circumstances of the present case. In the case in hand with a certain motive, the accused persons followed the complainant party so that they may not be able to receive compensation amount. All the accused persons joined together with the sole motive to restrain the widow of deceased from collecting the compensation amount awarded by the government.
9. As a result of above discussion, this bail application is dismissed. However, the learned trial court is directed to conclude the trial and pass the judgment within a period of four months. The above findings are tentative in nature and will not prejudice the case of either party.
Dated.4.6.2012 Judge