IN† THE† HIGH† COURT† OF† SINDH,† CIRCUIT† COURT† AT† HYDERABAD

 

 

Cr. Bail Application No.S- 127 of 2011.

 

 

O R D E R

 

 

Date of hearing :† 18.04.2011.

 

 

Applicant

:

Mulo Ahmed through Mr. Ghulam Sajjad Gopang, Advocate.

 

Respondent

:

The State through Syed Meeral Shah Deputy Prosecutor General duly assisted by Mr. Ahsan Gul Dahri Advocate for complainant.

 

 

Muhammad Ali Mazhar, J:- The Applicant has moved this Bail Application in Crime No.122 of 2009, registered at P.S. Daulatpur u/s 302, 337 H (ii), 114, 148, 149 PPC.

 

1. The facts forming the background of this application are that on 28.09.2009, complainant Ghulam Umar Otho, lodged an F.I.R as under:-

 

ďThe complaint is that I am a landlord and my father Manzoor Ali was the Nek Mard and used to supervise faislas of the community. Accused Zulfiqar Otho who is also a landlord was annoyed on this point and was in search of an opportunity and had kept issuing threats to my father not to make the faislas of the community. On the date of incident, I along with my father was coming on Motorcycle returning from Daulatpur City and were going to the village, Ali Muhammad and Muhammad Haroon were also on their Motorcycle behind us, when we arrived near village Dareri at about 10.30 A.M, we found 2 motorcycles standing there, accused Zulfiqar armed with pistol, accused Inayat armed with Gun, accused Mulo Ahmed armed with Gun, accused Chanesar armed with pistol and one unidentified accused person armed with pistol were standing on the road, the accused persons raised Hakal and stopped us, accused Zulfiqar Otho said to my father that he had asked him not to make the Faislas, but he refused to do so. Accused Zulfiqar asked all the accused persons to commit the murder of my father, on which accused Inayat made straight fire over my father which hit him on his right thigh and fell down on the ground on such incident all the traffic of vehicles gathered on the Road and all the accused persons escaped away towards western side on their Motorcycles making aerial firing, afterwards we took my father to Shahpur Jehania Hospital who could not survive and expired there. I have come to Police station and say that the accused Inayat has fired over my father and committed his murder and all the co-accused mentioned above have facilitated him so I pray for justice.Ē

 

 

2. The learned counsel for applicant argued that applicant has been involved in a false case and the F.I.R. was lodged after a delay of 12 hours without any plausible explanation. He further argued that fatal below is directly attributed to co-accused and the only allegation against the applicant is that he was present at the place of occurrence of offence which is alleged to be a vicarious liability and which can only be assessed at the time of trial therefore, the case of present applicant is of further inquiry. The learned counsel further argued that trial Court refused the bail of the applicant merely on the ground that he was fugitive for more than one year and no plausible explanation was made with regard to his abscondence. He was declared proclaimed offender and proceedings under 87 and 88 Cr.P.C have been initiated against him. The learned counsel argued that mere abscondence of the applicant does not disentitle him for facility of bail. In support of his arguments, the learned counsel relied upon the following case law:-

 

1. 1996 SCMR 1654, (Muhammad Sadiq and another Vs. State). In this matter, the honorable supreme court held that allegation against Muhammad Sadiq and Islam-ul-Haq, the present petitioners, are that they kept on firing and raising Lalkara. There is no injury by means of a pistol and 7 mm rifle. The allegation of Lalkara against the petitioners is proverbial. Though the petitioners were stated to be armed with pistol and rifle, but they did not cause any injury to the complainant party. The petitioners were admitted to bail.

 

2. 2006 YLR 2497, (Soonharo Vs. State). In this matter, the learned single Judge of this Court held that though the applicant was armed with gun but has not caused any injury to the deceased. The presence of the applicant at the place of wardat and his involvement in the commission of offence will be determined at the trial. The case requires further inquiry for the purposes of determination of vicarious liability and sharing common intention. Keeping in view the aforesaid circumstances, the applicant was allowed to bail.

 

3. 2009 YLR 181, (Gulab Dahri Vs. State). In this matter, the learned single Judge of this Court held that fatal below was attributed to co-accused, while no overt act was attributed to accused in the commission of the crime. Even Lalkara was not attributed to accused. Proceedings as envisaged under S. 512, Cr.P.C has been drawn against him. Even otherwise no absolute rule existed to the effect that a fugitive from law should, under no circumstances, be enlarged on bail, though abscondence did constitute a relevant factor when examining question of bail. No overt act attributed to accused except that he was present at the place of occurrence having passed enmity with complainant and deceased. Case against the accused required further inquiry into his guilt. Bail in such cases could not be withheld as a matter of punishment. Accused was admitted to bail in circumstances.

 

3. The learned counsel for complainant fully supported the impugned order and he argued that all the accused with common intention were present at the place of incident to murder the father of complainant and it is evident from the contents of F.I.R. that present applicant was also armed with weapon and the murder was committed due to preplanned conspiracy and all accused persons facilitated each other for committing the murder of complainantís father and all are vicariously liable and the question of vicarious liability can be decided even at the bail stage. In support of his arguments, the learned counsel for complainant relied upon the following case law.

 

1. 1989 SCMR 239, (Dhani Bux and others Vs. State). In this matter, the honorable supreme court upheld the order of high court refusing the bail to the accused on the ground that motive attributed is sufficient and each one of the accused is identified and named in the F.I.R. Prosecution witnesses have fully supported the case. The very fact that applicants, three of whom are brothers inter se and the fourth applicant is also their relative and due to matrimonial ill-will, they came to the place of incident armed with weapons and caused death of deceased Shah Nawaz. The source of identification is prominently mentioned in the F.I.R. and the prosecution witnesses in their statements before police and in 164 Cr.P.C statements have implicated the applicants and there are circumstances available making out a prima facie case against the applicants for having acted in furtherance of their common intention to kill the son of the complainant.

 

2. 2006 YLR 2988, (Muhammad Younis Vs. State). In this case, the learned single Judge of Lahore High Court held that Petitioner is named in the F.I.R. The Petitioner along with co-accused came on the spot after making preparation and arming themselves which shows that he shared the common intention with regard to the murder of deceased. In view of above circumstances, the bail application was dismissed.

 

3. 2008 P.Cr.L.J 676, (Shah Nawaz Vs. State). In this matter, the learned single Judge of this Court held that name of accused found place in the F.I.R. showing that at the relevant time, the accused was armed with iron rod and he also used same in the commission of offence. Such iron rod was recovered subsequently on the pointation of accused. Nothing was available on record to show that complainant party had any motive or reason to falsely implicate the accused in the case. Case was at preliminary stage and evidence of none of prosecution witnesses has been recorded. Court at bail stage, could not undertake deeper appreciation of the evidence of prosecution. Reasonable grounds existed to believe that accused was involved in the commission of the offence for which punishment provided was death or imprisonment for life. Bail application was dismissed.

 

4. SBLR 2007 Sindh 147, (Gulzar and another Vs. State). In this case, the learned single Judge of this court held that it appears from the bare reading of F.I.R. that no allegation of firing was made against the present applicant but his presence has been shown at the place of occurrence with weapon. It is further important to observe that Sudheer who caused the sole shot from his pistol which resulted in death of deceased is the brother of the present applicant and the manner in which the murder was committed appears to be preplanned where three brothers namely Gulzar i.e. applicant, Zulfiqar and Sudheer alongwith Akber, Ali Sher and Juman in a preplanned manner in the Court premises shot the deceased. It is also important to note that no explanation whatsoever is rendered to justify the presence of the accused at the place of occurrence alongwith his brother which leads to a tentative view that the applicant shared common intention to commit the murder of deceased.

 

 

 

 

4. The learned D.P.G for the State fully supported the impugned order and opposed the bail application on the ground that all the accused persons with their common intention committed the murder of complainantís father and from the contents of F.I.R., it is clear beyond any shadow of doubt that murder was committed due to a preplanned scheme therefore, the applicant is not entitled for any concession of bail. He further stated that challan has already been submitted in the trial Court.

 

5. The complainant has lodged F.I.R. under Section 302, 337-H (ii), 144, 148 and 149 P.P.C in which he has stated that his father was Nekmard and used to supervise and resolve the disputes of the community on which accused Zulfiqar and others were annoyed and were in search of an opportunity and they were also issuing threats to the deceased not to make the Faislas of community. When the complainant and his father were returning from Daulatpur city, one Ali Muhammad and Muhammad Haroon were also behind them and when they reached near village Dahri at about 10-30 a.m, they found that two motorcycles were parked on which accused persons including the applicant were standing on the road. The accused persons raised Hakal and stopped them. Accused Zulfiqar stated to the deceased that he had asked him not to make the Faislas but he refused to do so therefore, accused Zulfiqar asked all the accused persons named in the FIR to commit the murder of complainantís father. The statements† under Section 161 and 164 Cr.P.C of P.Ws Ali Muhammad and Muhammad Haroon were also recorded and they have supported the version of the complainant. According to Post Mortem Report dated 28.9.2009, the cause of death is† firearm injuries and three different injuries are mentioned in the report.

 

6. The crux of the arguments advanced by learned counsel for the applicant is that no overt act has been attributed to the applicant and though he was present at the scene duly armed but he did not cause any injury to the deceased. So far as the abscondence of the applicant is concerned, the honorable supreme court in its judgment reported in 1991 SCMR 322, held that it is not an absolute rule that fugitive should not under any circumstances be enlarged on bail although, it may be added, abscondence does not constitute relevant factor when examining the question of bail. Similarly, in another judgment reported in 2009 YLR 181, the learned single Judge of this Court has already referred to various judgments of honorable supreme court relating to the abscondence of accused persons and the gist of decided cases is that abscondence per se is no proof of the guilt of an accused person. Disappearance of a person named as a murderer after the occurrence is natural, whether named rightly or wrongly, it may however, create suspension against him but suspensions after all are suspensions. The abscondence of an accused itself may not point out towards his guilt but it depends upon the facts and circumstances of the each case as to whether abscondence was a pointer to his guilty or not. Abscondence of an accused can only remedy the defects in the prosecution case as neither it is necessary indicative of guilt nor is ever suspension by itself to prove the guilt.

 

7. The allegation made in the F.I.R. by the complainant shows that all the accused persons in a preplanned manner committed the murder of complainantís father and all the accused had shared common intention with principal accused and also facilitated the murder. Section 34 PPC has laid down the principle of constructive liability. If †††††††††††††††††††several persons would unite with common purpose to do ††††††††††††††††††any †criminal† offence, †all †those †who †assist †in †the †completion †of

 

their object, would be equally guilty. Foundation for constructive liability was the common intention in meeting accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence. In order to constitute an offence under Section 34 PPC, it is 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 join together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand, 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 within the meaning of Section 34 PPC, reference can be made to 2008 YLR 580.

 

8. The honorable supreme court in its judgment reported in PLD 2001 Supreme Court 378 (Muhammad Yaqoob, Sub-Inspector Vs. The State) held that a common intention presupposes prior concert and requires a prearranged plan, because before an accused can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof or prior concert, or proof of circumstances which necessarily led to that inference or that incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.

 

9. The principle of vicarious liability can be looked into even at bail stage if from the F.I.R., the accused appears to have acted in pre-concert or shared the community of intention with his co-accused who caused fatal injury to deceased and can be saddled by constructive or vicarious liability by invoking Section 34 PPC. The Court on the basis of material placed, such as F.I.R. and statements recorded by the police even at bail stage consider the question whether the case of constructive liability is made out or not. Paramount consideration is whether the accused was a member of an unlawful assembly or whether the offence has been committed in furtherance of the common object. In the case in hand, though the allegation against the present applicant is of making aerial firing alongwith co-accused and has not caused any fire arm injury to the deceased but his undeniable presence on the place of incident duly armed with weapon shows his motive of preplanned concert in furtherance of common object with principal accused. It is not a case of sudden provocation rendering the matter one of further inquiry. It is clear from the contents of F.I.R. that accused persons including the applicant duly armed with weapons were waiting the complainant party on the road and they raised Hakal and stopped the complainant party and committed the murder of complainantís father. The judgments cited by learned counsel for the applicant are distinguishable as in these cases, question of considering the vicarious liability at bail stage and sharing the common object was not an issue. While judgments relied upon by learned counsel for the complainant are applicable so far as related to sharing the common intention to commit the murder. It is also important to note that no explanation whatsoever is rendered to justify the presence of the accused at the place of occurrence which leads to a tentative view that the applicant shared common intention to commit the murder of deceased. Nothing is available on record to show that complainant party had any motive or reason to falsely implicate the accused in the case. Case is at preliminary stage and evidence of none of prosecution witnesses has been recorded. Court at bail stage, could not undertake deeper appreciation of the evidence of prosecution.

 

10. The upshot of the above discussion leads me to a conclusion that there are reasonable grounds to believe that applicant has shared the common intention with co-accused in the commission of crime of murder, therefore, he is not entitled to the concession of bail. Consequently, the bail application is dismissed. Since the challan has already been submitted in the trial Court, therefore, the learned trial Court is directed to conclude the trial preferably within a period of 03 months.

 

11. The observations made herein above are tentative in nature and would not affect the case of either party.

 

Hyderabad:-

Dated. 6.5.2011

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ††††††††† Judge

 

 

 

††† ††††

††† †††††††††††††† †††††††††