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Bail Application No. 177 of 1976, decided on 19th May 1976.

‑‑ ‑ S. 302 read with Ss. 148 & 149‑Murder‑Common intention‑Mere fact that accused were armed with weapons at time of occurrence Inference of common intention to kill cannot be drawn from such fact‑Evidence of common intention not direct or based on inference Held, must be in consonance with rule of evidence applicable in all cases of circumstantial evidence.‑[Common intention).

To draw an inference of a common intention to kill or even to cause injuries from the mere fact of the accused being armed with weapons at that time, cannot be said to be a 'necessary inference'. Evidence of common intention if not direct, and if based on inference, has got to be in consonance with the rule of evidence applicable in all cases of circumstantial evidence. It has got to be such as to be incompatible with any other explanation than the one, which is against the participants in the crime. In all other cases the accused can legitimately claim benefit of doubt to which they are always entitled,

Mahboob Shah v. The Crown A I R 1945 P C 118 ref.

--Ss. 497 & 498‑Accused‑applicants charged for offence under S. 302 read with Ss. 148 & 149, P. P. C.‑Pact of one of co- accused although armed with pistol at time of occurrence not using same and on that account being released on bail‑Belies inference of common intention to kill‑Co‑accused (numbering 5) granted bail in circumstances of case.‑[Bail‑Common intention].

M. I. Memon for Applicants.

Ghulam Ali Memon, A: G. for the State.

The seven applicants along with one Hote were challaned under sections 302 and 459, P. P. C. before Civil Judge and F. C. M., Tando Bago on the basis of F. I. R. dated 25‑12‑1974. The case is now sent to Court of Session, for trial under the new procedure laid down by the Law Reforms Ordinance, 1972.

The prosecution case is that on the day of the incident, in the morning the applicants along with Hote had entered the house of the complainant Hashim, being at that time armed with gun, hatchets and lathis with the intention to abduct Mst. Alma Khatoon daughter of Tharo. Some relations of the complainant who were present in the house intervened to rescue Mst. Alma Khatoon but the applicants and Hote their companion after giving blows to them succeeded in taking away Mst. Alma Khatoon. The First Information Report was therefore originally filed under sections 366, 459, 148 and 34, P. P. C. but as Mst. Alma Khatoon did not support the com plainant and on the contrary accused the complainant party, in her 161 as well as 164 statements section 366, P. P. C. was dropped in the final challan. Hote also filed a counter complaint under sections 366, 453, 148 and 149, P. P. C. against the complainant directly before the Civil Judge & F. C. M., Tando Bago in which process was issued against Khalifo Hasbim and.others after holding preliminary inquiry. The case is also received by the Court of Session for trial.

During the incident one Latif was killed and Abdullah, Jaro and Ramzan are said to have received injuries. There were two counter versions of the incident, wherein Mst. Alma was to be taken away.

In application for bail moved before Sessions Judge, Badin by the applicants and Hote, an order was passed on 21‑1‑76, in which with regard to Hote alone it was stated as under :

"So far as accused Hote is concerned, it is correct that excepting his presence alongwith the other accused, no allegation has been made against him. As against otter accused the allegation is that while attempting to take away Mst. Alma Khatoon forcibly, they had caused injuries to Latif and the other injured persons with lathis and hatchets. So far as the abduction of Mst. Alma Khatoon by the accused is concerned, it was not believed by the police, although the F. I. R. was registered under sections 366, 459, 148 and 149, P. P. C. The final challan was presented under sections 302, 459, 342, 323, 148 and 149, P. P. C. only. The presumption therefore is that prima facie accused Hote Khan and so also the other accused are not responsible for the abduction of Asst. Alma Khatoon. Again since accused Hote did not use his pistol, hence it has been argued that it cannot be said that he had common intention with the other accused to cause hurt to any one. This argument has force. No specific role has been ascribed to accused Hote. Several authorities have been quoted in support of the point that mere presence of an accused alongwith the co‑accused at the time of the incident, to whom no specific role has been attributed would not be sufficient to reject his bail plea. It is not necessary to reproduce these authorities here. I would therefore allow the bail application in respect of Hote Khan who shall be released on furnishing surety in the amount of Rs. 10,000 (rupees ten thousand) and P. R. in like amount."

Bail application of the present applicants was however rejected and they have now moved this Court for grant of bail.

The First Information Report being under section 366 read with other sections shows that the applicants had obviously come with the intention to take away Mst. Alma. This section was subsequently dropped because Mst. Alma did not support the prosecution in her statement under sec tion 164, Cr. P. C. and also in her statement before High Court where she was produced in Habeas Corpus proceedings. Hote was armed with a pistol, did not use the same and was on that account released on bail. The only question therefore would be whether the applicants had the common intention of causing murder of Latif. It is an admitted fact that they had all come to take away Mst. Alma, who as it transpired, was willing to go with them.

There appears no other evidence of common intention to commit the murder of Latif and cause injuries to others except that they had all come armed at that time and the learned Advocate‑General argued that this fact was enough to show that they bad come prepared to go to any extent, including that of causing to murder if it becomes necessary in order to achieve their object of taking away Mst. Alma. The intention of taking away Mst. Alma cannot be denied, upon the evidence on record, but to draw an inference of a common intention to kill or even to cause injuries from the mere fact of the accused being armed with weapons at that time, cannot be said to be a necessary inference', to use the words employed in the case of Mahboob Shah v. The Crown (A 1 R 1945 P C 118). Evidence of common intention, if not A direct, and if based on inference, has got to be in consonance with the rule of evidence applicable in all cases of circumstantial evidence. It has got to be such as to be incompatible with any other explanation than the one, which is against, the participants in the crime. In all other cases the accused can legitimately claim benefit of doubt to which they are always entitled.

In the instant case, the fact that Hote was armed with a pistol but did not use the same, also belies the inference that there was any common B intention of killing and that the fact has been accepted by the Sessions

Court. In such a case each one person would be liable for his own individual act.

All the witnesses have deposed that applicants Muhammad and Siddik had caused hatchet blows to the deceased Latif.

In these circumstances, without discussing the merits of the case, and in view of the fact that Hote is already released on bail by the Court of Session, I grant bail to applicants Soomar, Amir Bakhsh, Ahmed, Dosoo and Sharif only. They shall be released on furnishing sureties in the sum of its. 10,000.00 each and P. R. Bond in the same amount to the satisfaction of this Court or the Court of Session, Badin.

The application with regard to applicants Muhammad and Siddique stanch rejected.

However the considerations taken in disposing of this application may not influence the trial of the applicants and other accused, and the prosecution shall be at liberty to move for cancellation of bail if sufficient grounds are made out for the same, on recording further evidence.

S. Q. Order accordingly

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