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Criminal Bail Application No.153 of 1985, decided on 14th March, 1985.

‑‑‑S.497‑‑Penal Code (XLV of 186bN 5.302/34‑‑Accused left place of initial scuffle‑‑Returned duly armed with guns, waylaid complainant party‑‑Resorted to indiscriminate firing declaring intention to avenge their insult‑‑Prima facie accused shared common intention to kill, even if not directly responsible for causing death of deceased‑‑Accused by virtue of S.34, P.P.C. were, therefore, liable for murder‑‑Punishment to be awarded to accused would thus bring their case within the prohibition contained in S. 497, Cr. P. C.‑‑Bail refused in circumstances.

Azizullah K. Shaikh for Applicant.

A.A. Muhammadally, Asstt. A.‑G. for the State..

This bail application is moved on behalf of accused Anwar and Ali Murad who are facing trial for the murder of Misri. These two applicants alongwith co‑accused Qadoo and Muhammad Bux had gone to assist Jumo Panore in ploughing. The complainant party including the deceased were also called to render similar assistance to Jumo. While comparing the merits of their respective bullocks both the parties fell out and abused one and the other. On the same day at 5.00 p.m. the complainant's party were returning to their village when they were confronted by the applicants and co‑accused Qadoo and Muhammad Bux in the land of Yar Muhammad Leghari. The applicants and their companions were all armed with guns. On seeing the complainant's party they abused them and fired their guns at them, declaring that since they were insulted by the complainant's party, they being the members of Jamali tribe would not spare them. As a result of the gun shots four persons of complainant side sustained injuries. 'From them Misri later succumbed to the injuries.

The learned counsel for the applicants who was heard at great length in support of the application, contended that the fatal injuries which resulted in the death of Misri were not attributed to either of the applicants. According to the learned counsel since the fight flared up suddenly between the parties the element of common intention was missing and consequently the applicants could not be held liable for the acts of the co‑accused. It was further submitted by the learned counsel for the applicants that the dimensions of the injuries indicated as if they were self‑suffered. He also pointed out that absence of charring showed that the shots were fired from an appreciable range. Accordingly learned counsel was of the view that the accused could not be saddled with the intention of committing the murder. The learned A.A.‑G. appearing for the State also shared the view expressed by the learned counsel for the applicants and had, therefore, no objection to the grant of bail.

I am afraid I cannot persuade myself to endorse the views expressed at the bar. It would be noticed that the occurrence during which Misri from the complainant's side lost his life was preceded by exchange of abuses between the parties earlier in the day over the relative qualities of their respective bullocks. There is nothing to indicate that at the time of initial scuffle the accused were armed with guns. However, when they left the place of earlier occurrence they seemed to have nursed the grudge against the complainant's party so that soon thereafter they returned duly armed with guns and waylaid the complainant's party. It also appears that while firing guns at the complainant's party the accused allegedly declared their intention to avenge the insult inflicted on them, by killing the complainant and his companions. In these circumstances it is difficult to agree with the argument that the fight had erupted suddenly. Since the accused after their departure from the place where they had collected to assist Jumo had returned armed with guns and had fired guns at the complainant's party in pursuance of their declaration that they would kill them, prima facie they not only shared common intention of killing the complainant's party but also resorted to firing to carry out their threat.

In these circumstances even if the applicants were not responsible A for causing the death of Misri, they by virtue of section 34, P.P.C. were prima facie liable for the murder. In this connection reference may be made to the Supreme Court authority reported as Munawar v. State 1981 S C M R 1092 where it was held:

"We are in respectful agreement with the observations reproduced above and consider that it is entirely erroneous to think that in the case of Muhammad Akbar and others this Court laid down any rule of law to the effect that a person who does not cause injuries to the deceased cannot be burdened with constructive liability at the time of considering the question of bail. The question is essentially one which has to be determined on the basis of the facts of each case available on the record at the time the question of bail comes up for consideration."

As for the other argument that in view of the nature and dimensions of the injuries it was not justified to fasten the accused with the intention of killing the deceased, suffice it to say that the very fact that the accused came armed with guns and resorted to indiscriminate firing was enough to point towards their intention. In any case they very well knew that by such reckless firing, they were B likely to kill the deceased or any other member of the complainant's party. In that event also the punishment to be awarded to them would bring their case within the prohibitions contained in section 497, Cr. P. C.

Further argument of the learned counsel for the applicants that the injuries sustained by the deceased were self‑suffered, could not be considered at the bail stage, because it would be too difficult to draw such an inference in absence of evidence to that effect.

For above reasons the application is without merit and therefore the applicants are not entitled to bail. Consequently the application is dismissed.

S. A. Application dismissed.

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