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(Criminal Bail Application No. 873 of 1981, decided on 23rd November, 9 1.

--Ss. 497 & 498-Penal Code (XLV of 1860), Ss. 302 & 323/34 Bail-- Accused armed with firearms but containing themselves in giving blows with back sides of fire-arms--Question whether accused including one already granted bail had common intention to kill deceased and who among them responsible for causing fatal injury requiring further inquiry-Bail granted.

Mohammad Rafiq Khanzada for Applicants.

Abdul Sattar Shaikh, Addl. A. G, for the State.

Learned counsel for the applicants stated that co-accused Misri, also gave blow, according to F. I, R., on the head of the deceased but he has been granted bail by the trial Court, whereas the application of the present applicants have been rejected without cogent reasons. Counsel further submitted, that according to the prosecution story, present applicants were armed with guns and as such if their intention was to kill the deceased, they would have used their fire-arms, but they did not do so, which shows that they had not come with common intention to kill the deceased. According to the post-mortem report, no doubt, injury No. 1 by itself was sufficient to cause the death of the deceased, but there is nothing so far on record to show, who actually gave the said injury to the deceased and prima facie, provisions of section 34, P. P. C. are not attracted to the present case and as such this is a fit case for grant of bail, as further inquiry is necessary to determine, who was responsible for giving injury No. 1, which resulted in the death of the deceased.

The learned Additional Advocate-General appearing on behalf of the State does not oppose the above bail application in view of the above facts.

I have considered the- submissions made by the learned counsel for the applicants. The prosecution case as disclosed in F. I. R., is that the present applicants were armed with guns, but still they have not fired the same and contained in giving blows to the deceased with the back side of their fire-arms, this shows, prima facie, that the question whether all the three accused persons came with common intention to kill the deceased,, would require further inquiry at the stage of trial as there is nothing so far to suggest which of the applicants named in F. I. R. was responsible for causing injury No. 1, which was sufficient in the ordinary course of nature to cause death. According to F. I. R. the present applicants as well as co-accused, who has been granted bail caused injuries on the head of the deceased and in the absence of any evidence brought on record, in order to establish common intention between the applicants and co-accused, who has been granted bail, it cannot be said which of the three applicants named in F. I. R. will be responsible for the injury in question. In the circumstances of the present facts, the question of common intention as well as who was responsible for causing injury No. 1 to the deceased would require further inquiry at the stage of trial and, therefore, I grant the above application and direct that the applicants be released on bail on their furnishing surety in the sum of Rs. 30,000 (Thirty thousand) each, with P. R: bonds in the like amount to the satisfaction of the trial court.

M. Y. H. Bail granted

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