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Criminal Miscellaneous Application No. 568 of 1985, decided on 26th January, 1986.

‑‑‑--S. 497‑‑Bail‑‑Appreciation of evidence‑‑Only tentative assessment of evidence is to be made at bail stage.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/148/149‑‑Bail‑ Application for cancellation‑‑Occurrence, a daylight incident‑‑First Information Report lodged promptly wherein name of accused, weapon and part assigned to him, given‑‑Witnesses supporting prosecution case as given in First Information Report‑‑Prima facie ease for sharing common intention and vicarious liability made out against accused‑‑Order of trial Court granting bail to accused cancelled.

1981 S C M R 1092; 1982 S C M R 84; 1985 P Cr. L J 216; 1984 S C M R 206; 1984 6 C M R 530; 1980 S C M R 193; 1983 P L C 279; 1983 P Cr. L J 2177; 1981 S C M R 894 and 1980 P Cr. L J 446 ref.

Abdul Fateh Malik for Applicant.

Shaikh Ayaz for Respondents.

Syed Zawar Hussain, A. A.‑G. for the State.

This application has been filed under section 497(5), Cr.P.C. by complainant Behram wherein it is requested that bail granted to respondent Monthar be cancelled.

2. Briefly stated the facts of the prosecution case are that on 6‑7‑1985 after sun rise Miral, Muhammad Alam, Shahzada and complainant Behram were standing in front of their houses, when Ghulshan Ali came and informed complainant that goats of Rahzan Lakhan had entered in his vegetable cultivation which were being grazed by a son of Rahzan Lakhan have been driven out. At about 8‑30 a.m. accused Pandhi, Rahzan alias Ghulam Kadir, Manthar and Inayat Lakhans duly armed with guns came there. Pandhi instigated others and fired at Gulshan Ali. Inayat fired which hit Miral and Rahzan Lakhan, also fired at Miral who fell down. Manthar fired straight shots on complainant which missed. Miral and Gulshan Ali sustained injuries. Subsequently Miral died on the way to Hospital.

3. Mr. Abdul Fateh Malik, Advocate for applicant contended that there is a direct allegation against respondent Manthar that at the time of incident he was armed with gun and fired at complainant and others which missed. He has also argued that Mashirnama shows that at the place where Manthar was said to be standing at the time of incident the empty was found and gun being a crime weapon has been secured from him. He has referred to the cases reported in 1981 S C M R 1092, 1982 S C M R 84 and 1985 P Cr. L J 216.

4. Mr. Shaikh Ayaz, Advocate for the respondent contended that applicant is only responsible for ineffective firing and he has rightly been granted bail by the learned Sessions Judge, Sukkur. Mr. Shaikh Ayaz has relied on the cases reported in 1984 S C M R 206, 1984 S C M R 530 and 1980 S C M R 193.

5. Mr. Zawar Hussain Jafferi, the learned A.A.‑G. for the State has supported the cancellation application and submitted that there is direct allegation of firing against respondent and gun has also been secured from him, they Before, this is a fit case for cancellation of bail.

6. In this case one Behram lodged report at 9‑30 a, m. at Police Station Rohri in which he sated that respondent Manthar duly armed with gun came alongwith other accused and at the instigation Pandhi, Inayat Ali fired at Gulshan Ali which hit him and then he instigated other accused on which Inayat and Rahzan fired at Miral due to which he fell down and that respondent Manthar also fired at them which missed. The learned Sessions Judge granted bail, by an order, dated 8‑9‑1985 on the ground that allegation against him is that of ineffective firing. Therefore, his case is distinguishable from other accused who fired which hit Miral and Gulshan Ali. The clear legal position is that at bail stage only tentative assessment of the evidence is to be made. Now I proceed to discuss the cases cited by Mr. Shaikh Ayaz, Advocate. The facts of the case reported in 1984 S C M R 206 are different as in that case the medical evidence did not support about the injuries sustained by the deceased. The facts of the case reported in 1984 S C M R 530 are that petitioner caused injury to the deceased and co‑accused were already on bail but in this case co‑accused were refused bail. The cases reported in 1983 P L C 279, 1983 P Cr. L J 2177 and other cases cited by the learned counsel are on different footing.

7. In case of Ajmal Khan v. State reported in 1985 P Cr. L J 217. The accused came running duly armed and attacked complainant party. It was held that accused shared common intention with co‑accused to cause death and bail was refused. In case of Munawar v. The State reported in 1981 S C M R 1092 it has been held that person who does not cause injuries to the deceased could be made responsible for constructive liability for the purpose of bail and it cannot be said that he is not guilty of an offence punishable with death or imprisonment for life.

In case of Baboo v. The State reported in 1981 S C M R 894. The facts are that accused joined unlawful assembly by arming himself with a gun. It was held whether fatal shot attributed to him not immaterial. The Supreme Court has not considered the ground even accused was found innocent by the Investigating Officer and held that bail was rightly refused by the High Court. The observations are as under:---

"As the allegation against the petitioner is that he had joined unlawful assembly by arming himself with a gun, it is immaterial whether the fatal shot is attributed or not. Although the Investigating Officer is said to have found him innocent, yet the name of the petitioner was not shown in column No. 2, but in column No.3 as a regular accused. No benefit can, therefore accrue to the petitioner on the basis of the opinion formed by the Investigating Officer during the investigation."

In case of Iqbal v. The State reported in 1982 S C M R 84, it has been held that:‑-

"All accused having acted in pre-concert not entitled to bail."

On this point I also refer to a case of Ghulam Nabi v. Ahmad Hussain and 2 others reported in 1980 P Cr. L J 446. It is a daylight incident and first information report was lodged promptly. The name of respondent Manthar alongwith his weapon and part assigned to him is given in the F.I.R. The witnesses during investigation have supported the case of prosecution as given in the F. I. R. Therefore, I am of the opinion that prima facie case for sharing common intention and vicarious liability is made out against the respondent Manthar. I, therefore, set aside the order of learned Sessions Judge, Sukkur whereby he granted bail to respondent Manthar. Consequently his bail is cancelled and he shall be remanded to custody.

M.Y.H. Bail cancelled.

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