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Criminal Bail Application No. 934 of 1984, decided on 3rd October, 1984.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail, grant of‑‑As per F.I.R. and 164, Cr.P.C. statements of prosecution witnesses, applicants at best responsible for causing simple injuries with blunt weapon to complainant‑‑Fatal injuries to deceased attributed to co accused‑‑Question whether applicants shared common intention with co‑accused to kill deceased, requiring further inquiry‑‑Applicants allowed bail, in circumstances.‑‑[Common intention].

Hassan Jaffer for the Applicants.

Abdul Sattar, A.A.‑G for the State.

Above three applicants alongwith co‑accused Muhammad (who has not applied for bail) have been sent up for trial for offences under section 302/307/34, P.P.C. for having caused murder of one Muhammad and causing injuries to complainant Ali Muhammad and Jumma on 2‑5‑1984 at 6‑45 a.m. near their village Soomar Goth. The F.I.R. of the incident was lodged by the complainant Ali Muhammad son of the deceased on the same day at 8‑15 a.m. at Malir Police Station.

In his F.I.R., Ali Muhammad stated that co‑accused Muhammad had caused hatchet injuries to deceased as result of which the latter had died at the spot. About the applicants, the version in the F.I.R. is that though they were armed with hatchet, but they did not cause any injury to the deceased. They are alleged to have caused simple injuries to complainant himself and Jumma.

From the medical certificate it appears that Ali Muhammad had received simple injuries with blunt weapon. Jumma had not received any injury. He was not even sent to Medical Officer. Hence so far as the applicants are concerned they are not alleged to have caused any injury to deceased Muhammad. Fatal injuries to the deceased have been attributed to co‑accused Muhammad only. The incident is alleged to have been seen by Peer and Mahboob P.Ws besides complainant and his brother Jumma. In their statements under section 164, Cr.P.C. Jumma and Peer and Mahboob, have stated almost the same thing as stated by the complainant in his F. I. R.

From the F.I.R. and 164, Cr.P.C. statements it can be said that so far as the applicants Ahmad, Muhammad Hussain and Bilal are concerned, the question whether they had common intention with co‑accused Muhammad to kill the deceased Muhammad, is one of further enquiry. According to the F.I.R. and 164, Cr.P.C. statements of the P.Ws, the three applicants can at the most be said to have caused simple injuries with blunt weapon to Ali Muhammad. It has been argued by Mr, Hassan Jaffar that under similar circumstances Supreme Court: has held in 1978 S C M R 7 that the accused persons were entitled to bail. Following observations made in the above decision are relevant for the purpose of this bail application:‑

"The perusal of the F.I.R., however, reveals that Fateh Khan son of Ghazi and Ahmad Nawaz son of Shahnawaz petitioners are no alleged to have inflicted any injury on the deceased Ghulam Rasul, but are alleged to have caused simple injuries to the complainant (Ghulam Qadir). Their case, therefore, appears to stand on a different footing. This aspect of the matter has been overlooked by the learned Judge in the High Court. The learned counsel for the petitioners cited the case of Mahla v. State 1976 P Cr. L J 1095 which support the contention that the person who had not caused injuries to the deceased cannot, prima facie, be held to have committed any offence punishable with death or imprisonment for life."

In view of the above legal position the application is allowed. The three applicants shall be released on furnishing sureties in the amount of Rs. 20,000 and P.Rs. in like amount each to the satisfaction of IInd Additional Sessions Judge, Karachi.

S. G. D. Bail allowed.

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