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Criminal Miscellaneous No. 151 of 1985, decided on 3rd May, 1985.

---S. 497 ‑Penal Code (XLV of 1860), S. 302/34‑Bail‑Accused charged only to have commanded his co‑accused to kill deceased and he himself had been attributed no overt act‑Case of accused arguable for bail as being open to further probe‑Bail allowed.

State through Liaquat Ali and another v. Amanullah and 2 others 198 P Cr. L J 593 ref.

Nazar Muhammad v. The State and another P L D 1978 S C 236 and Muhammad Aslam v. The State 1984 P Cr. L 1 1980 rel.

Salim Dil Khan for Petitioner.

H. Saadullah Khan, Asstt. A.‑G. for the State.

Date of hearing: 3rd December, 1985.

This order should be read in continuation of my order dated 3‑12‑1.985 whereby I have allowed bail to the accused‑petitioner for the reasons to be recorded later on.

2. Sher Afgan has invoked the indulgence of this Court through the instant criminal miscellaneous petition for his release on bail in a case under section 302/34, P. P. C. registered against him. vide F. I. R. No. 160, dated 19‑7‑1.985, of Police Station Miryan.

3. Facts in brief are that on 19‑7‑1985 Muhammad Nawaz Khan lodged a report in Police Station Miryan at 1900 hours that while he alongwith Sardar Khan and Karim Dad Kban besides his son Matiullah Khan deceased were present in their Chowk gossiping, they. in order to make ablutions for 'Digar' prayers, started from the Chowk and when reached near a vacant plot adjacent to the Chowk they saw Aftab Zaman, Iqbal Zaman and Sher Afgan, accused‑petitioner, armed with 'Topaks'. On seeing them they stood up and simultaneously therewith Sher Afgan petitioner directed his co‑accused Aftab Zaman and lqbal Zaman to fire at Matiullah deceased. Aftab Zaman had fired the first shot followed by Iqbal Zaman whereupon the deceased was bit and he fell down to the ground. All the three accused decamped from the spot. The dead body was taken in a Datsun to the police station where the report was lodged. Motive for the offence was given to be previous dispute between the parties over the land.

4. Sher Afgan accused‑petitioner applied for his release on bail to the Illaqa Magistrate who, however, rejected his bail petition per order dated 1‑8‑1985. Subsequently he approached the Court of the learned Sessions Judge, Bannu where too per order dated 9‑9‑1985 his bail petition was rejected. I have heard the arguments of Mr. Saleem Dil Khan counsel for the petitioner and Mr. Saadullah Khan Miankhel, Assistant Advocate- General on behalf of the State respondent and have also gone through the record of the case.

5. Although the learned counsel for the petitioner argued that in this case the occurrence had taken place at Digar' time but the report was lodged late in the evening at 1900 hours while the dead body had been taken to the Police Station in a Datsun and, therefore, it was a case in which it could be validly presumed that the report was lodged after due deiibrations and consultations, however, at this stage I do not want to proceed on that aspect of the matter because in the instant case the accused‑petitioner although he is said to be armed with a 'Topak' is given the role of only commanding his co‑accused to fire at the deceased. The learned Assistant Advocate‑General contended that where there is a constructive liability to the accused for offence committed by his co‑accused he is not entitled to bail. He placed his reliance on State through Liaquat Ali and another v. Amanullah and 2 others (1984 P Cr. L J 593), wherein the learned Judge had observed that:‑

"Amanullah accused has been charged one, .for slapping Fayaz P. W., second, raising a Lalkara and third, himself inflicting two incised wounds with knife at the face to Liaqat Ali P. W. Lalkara in the shape of command by an accused in a position of influence to his co‑accused who perpetrates the crime in compliance thereof shall prima facie incur a constructive liability to him for the offence committed by his co‑accused."

On the other hand in Nazar Muhammad v. The State and another (P L D 1978 S C 236), it was observed:‑

"So far as the above case is concerned, we may observe that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case."

In this case even the authority produced by the learned Advocate‑General, referred to above, is of no help to the prosecution because in that case the accused bad not only commanded his co‑accused but had also taken active part, in that, he had slapped and injured one of the P. Ws. on the other hand in this case the accused‑petitioner is charged only for commanding his co‑accused and despite the fact that he was armed with 'Topak' nowhere it has been said that he himself took any part in the commission of the crime. In Muhammad Aslam v. The State (1984 P Cr. L J 1980), it was observed:‑

"The Japha and the Lalkara alleged against the petitioner do not appear to be anything more than the proverbial Japha and Lalkara. The case of the petitioner that he did not participate in the offence, therefore, gains strength from these circumstances."

The only circumstance which goes against the accused‑petitioner is that the perusal of the site plan indicates. That the occurrence had taken place just in front of the house of the accused‑petitioner. This circum stance can also be taken in favour of the accused‑petitioner, in that, since the occurrence had taken place in front of the house of the accused -petitioner he was also charged with the actual culprits by the prosecution. In any case the fact that the accused‑petitioner is charged only to have commanded his co‑accused to kill the deceased and he himself has been attributed no overt act, his case is arguable for the bail as it is open to further probe.

6. Accordingly I direct the accused‑petitioner to be released on bail on his furnishing bail bonds in the sum of Rs. 50,000 with two sureties each in the like amount to the satisfaction of any Magistrate First Class of Bannu District.

M. H. Bail granted.

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