Find a Lawyer

Criminal Bail Application No. 363 of 1985, decided on 17th June, 1985.

---S. 497--Penal Code (XLV of 1860), Ss. 302/34 & 114--West Pakistan Arms Ordinance (XX of 1965), S. 13-D--Bail--vicarious liability--Day time occurrence in the heart of city--F.I.R, immediately lodged--Accused named in F.I.R. --No mistaken identity--Specific role of each accused mentioned in F.I.R. corroborated by medical evidence- -Accused having come armed with deadly weapons--Held, it would not be possible to hold that accused were not sharing common intention with co-accused- Tentatively there was sufficient evidence of vicarious liability against accused--Bail refused in circumstances.

Muhammad Daud Baloch for Petitioners.

Mushtaq Hussain Shah for the Complainant.

Sharfuddin Ada for the State.

Date of hearing: 17th June, 1985.

1. Granted.

2. This bail application has been filed on behalf of applicants Ghulam, Nabi and Alidino in a case registered under sections 302, 34, 114, P.P.C. and 13-D, Arms Ordinance.

Brief facts of the prosecution case are that on 17-1-1985 at 8-00 a.m. Alidino and Ghulam Nabi with Lathis, Alam with pistol and Ghazi with hatchet attacked Ashiq Hussain with their weapons in front of office of Mir Mohammad contractor in vegetable market, Khairpur. It is alleged that applicant Alidino instigated others whereupon Alam fired at Ashiq Hussain with pistol which hit him on the right side of his face and he fell down. Thereafter, Ghazi gave him hatchet blow and Ghulam Nabi and Alidino also caused him Lathi blows on thigh and leg. Accused ran away Ashiq Hussain was removed to the hospital and he died on the way Complainant Ghulam Mohammad lodged report at Police Station, Khairpur town at 8-45 a.m.

Mr. Muhammad Daud Baloch learned counsel for the applicant contended that allegation against the applicants is that they caused simple Lathi blows to deceased. Therefore, they are entitled to bail. He has referred to 1982 S C M R 440 and 1984 S C M R 530.

Mr. Mushtaq Hussain Shah appearing for the complainant submitted that all the accused came duly armed with deadly weapons and caused injuries to deceased Ashiq Hussain who was a practising Advocate. He has referred to the cases reported in P L D 1978 S C 236 and P L D 1983 S C 382 (sic).

Mr. Sharfuddin Ada appearing for the State has opposed the bail and argued that specific part has been attributed to applicants and they were identified by so many witnesses at the time of the incident.

This incident took place at 8-00 a.m. and names of all accused hate been given in the F.I.R. Therefore, there is no mistaken identity. The F.I.R. vas lodged immediately. The post-mortem report shows that deceased sustained as many as four injuries out of which two injuries were caused to the deceased by blunt weapon at knee and thigh and it is specifically mentioned in the F.I.R. that applicants caused injuries on that part of the body. Deceased also sustained fire-arm injury and hatchet injury. This is daylight murder in heart of city of Khairpur. Applicants aria their companions are alleged to have come fully armed with deadly weapons and it was in pursuance of their common intention that they caused injuries to deceased and medical evidence fully supports the prosecution case. In these circumstances it is not possible to hold that applicants did not share any common intention with the co-accused. From the tentative assessment I am of the view that there is sufficient evidence of vicarious liability against the applicants. In case reported in 1981 S C M R 1092 it has been held that it is not correct that a person who does not cause injuries to the deceased cannot be burdened with constructive liability.

Prima facie case under section 302/34 is made out.

S.A. Application dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.