IN THE HIGH COURT OF SINDH, KARACHI
Abbas Ali…………............vs…………………….. The State
Date of hearing 26.08.2014
Mr.Abdus Sami, Advocate for the Applicant.
Ms.Akhter Rehana, Additional P.G.
Complainant Muhammad Amir present in person.
Muhammad Ali Mazhar, J The applicant has applied for post arrest bail in Crime No.163/2011, lodged at P.S. Al-Falah Karachi under Section 394, 397, and 34 P.P.C. In the charge sheet Section 302 P.P.C was also added.
2.The brief facts of the case as narrated in the FIR are that on 6.6.2011, complainant Muhammad Amir s/o Shabbir Ahmed along with his deceased brother Munir Ahmed was selling milk. The applicant with absconding accused duly armed with weapons committed robbery and the deceased caught hold of the applicant on which absconding accused started firing upon the deceased in order to rescue the applicant. Due to said firing deceased Munir Ahmed received four bullets injuries while applicant received one injury. The injured later on died in the hospital. The absconding accused Amir son of Abu Bakar Siddique fled away with robbed amount of Rs.70,000/-. He also took away the pistol of applicant from the scene, meanwhile, police reached at the spot and arrested the applicant.
3. The applicant had filed bail application No.973/2011 in the trial court, which was dismissed vide order dated 09.12.2011. The impugned order reveals that first bail application of accused was dismissed on merits and no fresh ground was raised in trial court except that the evidence of the complainant has been recorded. Learned counsel for the applicant argued that the applicant has been falsely implicated in the case. The complainant in his evidence had only shown the presence of the applicant and mere presence of the accused at the spot is no offence and the prosecution has failed to connect the applicant with the crime. He further argued that there is no direct or indirect evidence on record to show that the applicant is involved in the crime rather the applicant himself sustained injury and due to misunderstanding he was booked in the case. He also referred to cross-examination of the complainant and his father.
4. On the contrary, learned APG argued that the name of the applicant is mentioned in the FIR with the specific role as they came to commit robbery and also committed the crime of murder of Munir Ahmed who received four bullets injuries. The applicant was arrested on the spot in injured condition and this injury was inflicted by co-accused when he was making firing upon the deceased Munir Ahmed. The applicant along with co-accused came with the intention to commit murder and robbery hence the applicant is not entitled to the bail.
5. Heard the arguments. Learned counsel for the applicant referred to the cross-examination of Muhammad Amir who deposed that the accused Abbas made no firing during the incident and the accused’s witness Shabbir Ahmed, father of the complainant and deceased deposed that accused Abbas (applicant) was in the hands of my son Munir Ahmed and absconding accused Amir was firing upon my son Munir Ahmed to get free the accused Abbas from his grip as the keys of the motorcycle were with him. He further deposed that Munir Ahmed disclosed to his brother that accused Abbas has made firing on his kidney region. However, he admitted in cross-examination that he has not seen accused Abbas, while making firing in the incident.
6. If the contents of FIR are read with the evidence in juxtaposition, it is clear that both the applicant were present at the place of incident. It is also a fact that he was himself injured at the place of incident which injury was allegedly inflicted upon him by the co-accused. It is also clearly mentioned in the evidence of the deceased’s father that in order to free the present applicant from the grip of deceased, the co-accused made firing upon him. FIR of the offence has been lodged under section 34 PPC also, which provides that a criminal act done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. The common intention generally involves the element of common motive and preparation. It is not the case that the applicant was not present at the place of incident and he has been falsely implicated or involved in the case. It makes no difference that present applicant had made fire upon the deceased or not? but what actually matters is substance of the charge and offence. The presence of the applicant was not denied at the place of incident. It is also not his case that he was not arrested from the place of incident, therefore, I am of the tentative view that the applicant and co-accused both in a preplanned manner and pre-concert committed the offence in which one innocent person lost his life.
7. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The section does not say ‘the common intention of all’, nor does it say ‘and intention common to all’. Under the provisions of section 34 the essence of all the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The expression “in furtherance of common intention of all” in section 34 need not necessarily relate to person actually killed but it is sufficient for the application of this provision that the common intention contemplated therein was to commit culpable homicide. Constructive liability under the Code may arise in the well-defined cases such as a person may be constructively liable for an offence which he did not actually commit by reason of common intention of all to commit such an offence (section 34); he being an abettor in commission of an offence (section 109); he being a member of a conspiracy to commit such an offence (section 120B); and he being a member of an unlawful assembly, the members whereof knew that an offence was likely to be committed (section 149); 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 preconcert 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, P.P.C.
8. In the case of Mulo Ahmed v. The State, (2011 MLD 1171), the vicarious and or constructive liability was discussed by me in the above order keeping in mind the import and applicability of Section 34 PPC which is as under:-
“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 preconcert 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, P.P.C. 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 along with 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 complainant’s father. The judgment cited by learned counsel for the applicant are distinguishable as in these case, 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”.
9. The upshot of the above discussion leads me to a conclusion that there are reasonable grounds to believe that the applicant has shared the common intention with co-accused in the commission of crime of murder and robbery; therefore, he is not entitled to the concession of bail. Consequently, the bail application is dismissed. The observations made hereinabove are tentative in nature and would not affect the case of either party.