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Criminal Bail Application No. 39 and Criminal Miscellaneous Appli cation No. 69 of 1979, decided on 3rd March, 1979.

‑‑‑S. 497‑Petitioner's name appearing in F. 1. R. as actual assailant, having indicted knife blow on deceased on being asked by co‑accused and thus causing his death‑Bail declined, in circumstances.

--‑‑S. 34 and Criminal Procedure Code (V of 1898), S. 497 (5) Cancellation of bail‑Common intention‑Bail could not be allowed on mere ground of accused having only instigated co‑accused to attack and himself having only caught hold of deceased‑Person in order to be saddled with responsibility‑To be shown animated with common intention as distinct from similar intention‑Possibility of accused having not known about availability of knife with co- accused being not excluded and accused having asked co‑accused to attack (maro), word maro' not necessarily connoting instigation to cause death of accused, accused held, only intended giving of a beating to deceased‑Mere facts of accused having caught hold of deceased and asked co‑accused to attack by uttering word 'maro', held further, do not in absence of other evidence, suffice to attract application of S. 34‑Petition for ,cancellation of bail dismissed. [Words and phrases‑Common intention].

Mahboob Shah v. The State A I .R 1945 P C 118 ; Hussain v. The State 1969 S C M R 454 ; Ali Mohammad and another v. The State P L D 1965 Kar. 135 ; Abdul Hakim and 2 others v. The State P L .D 1971 Kar.. 239 ; Saadat Mian v. The State P L D 1963 Kar. 745 and Abdul Sattar and another v. The State P L D 1979 Kar. 72 ref.

Ch. Iftikhar Ahmad and K. Jil: Nadeem for Appellant.

Mazharul Haq, Asstt. A.‑G. (Sind) for the State.

Ch. Iftikhar for Respondent (in Cr. Mist. No. 69 of 1979).

Date of hearing ;, 28th February, 1979.

The facts which are common to these cases areas follows :‑

Applicant Shabbir Hussain (applicant in. Criminal Bail Application No. 39 of 1979) and respondent Mohammad Shah (respondent in Criminal Miscellaneous Application No. 69 of 1979) are standing trial on a charge under section 302/34, P. P. C. in relation to the murder of one Khursheed Hyder committed on 10th November, 1978 at about 9‑30 p. m. The report in regard to the incident was lodged by Mst. Naseem Zohra, the daughter of the deceased, at Nazimabad Police Station within 21 hours of the incident. The facts disclosed in the report are that the deceased was residing at House No. 30, People's Colony alongwith complainant Mst. Naseem 7_ohra The complainant heard some noise and went towards the shop of the deceased and saw that respondent Mohammad Shah had caught hold of the deceased from the front and asked applicant Shabbir Hussain to attack (maro) the deceased whereupon the latter gave a knife blow on the back of the deceased. Cries were raised, upon which both the assailants spared the deceased and ran away. Applicant Shabbir Hussain had left the weapon of offence at the scene.

2. An application for bail was made before the 11 Additional Sessions Judge, Karachi, who rejected the same in regard to applicant Shabbir Hussain but allowed bail to respondent Mohammad Shah on the ground that he had only caught hold of the deceased and his liability by reason of section 34 of the Pakistan Penal Code had yet to be determined. Shabbir Hussain had made the present bail application whereas complainant Mst. Naseem Zohra had made the connected application for cancellation of bail granted to respondent Mohammad Shah. I have heard the Advocates for the parties and Mr. Mazhar‑ul‑Haq Hassan Ali, Assistant Advocate General for the State.

3. The case of applicant Shabbir Hussain does not project any difficulty. His name appears in the First Information Report as the actual assailant, who, on being asked by Mohammad Shah to attack, inflicted a knife blow on the back of the deceased causing his death.' No evidence has yet been recorded and it is, therefore, premature .to consider the question of credibility of the complainant Mst. Naseem Zohra. I must, however, record that the first information report has not disclosed the names of witnesses but the effect of such circumstances would be for the trial Court to consider on the basis of evidence that may be laid before it.

4. The case of Muhammad Shah has been distinguished by the learned Additional Sessions Judge on the ground that he had only instigated the co‑accused to attack and he had only caught hold of the deceased. The process of reasoning adopted by the learned Additional Sessions Judge does not appeal to me because it is alleged that both the accused had come ,q together and while Mohammad Shah had caught hold of the deceased the co‑accused Shabbir Hussain who is the son of Mohammad Shah on being asked to attack inflicted a knife blow. The First Information Report states that there was a background of enmity, the particulars whereof have not been disclosed.

5. Although I am unable to agree with the reason adopted by the learned Additional Sessions Judge yet I am of the view that bail granted to respondent Mohammad Shah should not be cancelled. For attracting section 34, P. P. C. it has to be established that the person sought to be saddled with responsibility was animated with common intention, as distinct from similar intention. The First Information Report does not disclose if the knife used by Shabbir Hussain was a visible to respondent Mohammad Shah. The possibility of respondent Mohammad Shah not knowing about the availability of the knife with applicant Shabbir. Hussain cannot be excluded. What is more that respondent Mohammad Shah had asked applicant Shabbir Hussain to attack (Mayo) the deceased. These words do not necessarily connote an instigation to cause death. There is a possibility that respondent Mohammad Shah only intended the giving of a beating to the deceased. The nature of enmity between the accused and the deceased is also not disclosed so that it cannot be said that the dispute was of a magnitude that might pursuade both the accused to commit the crime of murder.

6. In the background ‑of such facts and circumstances, as are detailed ;n the preceding paragraph, the mere fact of respondent Muhammad Shah having caught hold of the deceased and asking Shabbir Hussain. to attack by uttering the Word "Maro" would not, in absence of other evidence, be sufficient to attract the application of section 34, P. P. C. A long list of decided cases namely Mahboob Shah v. The State (AIR 1945PC118) ; Hussain v. The State (1969SCMR454) ; Ali Mohammad and another v. The State (P L D 1965 Kar. 135) ; Abdul Hakim and 2 others v. The State (P L D 1971 Kar. 239) ; Saadat Mian v. The State (P L D 1963 Kar. 745) and Abdul Sattar and another v. The State (P L D 1979 Kar. 72) may be usefully referred to. On the present state of material it is not necessary to draw an inference that respondent Mohammad Shah must be burdened with liability of having common intention to commit murder.

7. In these circumstances I do not consider this case fit for cancel lation of bail. I would, however, leave it open to the trial Court to consider whether respondent Mohammad Shah should continue on bail, but only at the stage when evidence is recorded.

8. In the result both these applications are dismissed.

Applications dismissed.

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