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Criminal Miscellaneous No.288 and Criminal Bail Application No.670 of 1987, decided on 25th June, 1987.

---S.498--Penal. Code (XLV of 1860), S.302/34--Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.6 & 9--Bail, grant of--Constructive liability--Accused empty handed causing no injury to deceased--No Lalkara attributed to accused--Accused went to deceased for getting money from him--Deceased refusing to give money on day of, occurrence--Accused catching hold collar of deceased and co-accused causing injury--No pre-concert for causing injury to deceased--Section 34, P. P. C., held, was not attracted--Bail granted in circumstances.

Muhammad Nazir v. State 1984 S C M R. 206; Amir Ali and another v.. State 1986 P Cr:L J 695; Haji Mohabbat and another v. State 1981 P Cr.L J 1190; Munawar Ali v. The State 1981 S C M R 1092 and 1978, S C M R 7 ref.

Shamsuddin Soomro for Applicant.

S.Sarfaraz Ahmed Khan, A.A.-G. for the State.

This application for bail under section 498 Cr. P.C. has been presented by Muhammad Younus Qureshi who is accused in Criminal Case No.174/86 Police Station Phuleli, Hyderabad, under sections 302/34 PPC and 6/9 of Prohibition (Enforcement of Hadd) Order, 1979.

2. The prosecution case as per F. I. R. lodged by Muhammad Ramzan against the accused is that on 13-12-1986 at about 5-30 p.m. he saw the applicant /accused holding his brother Abdur Rahman by collar at the road near Rauf Flour Mill when co-accused Yousuf drew a dagger and inflicted blows to Abdur Rahman. The incident was witnessed by Muhammad Bashir and Shamsher. Both the accused also took away Rs.5,000 from the cash box (Galla). On account of fear the complainant and the two named witnesses did not go near to the accused. On enquiry, his servants Bashir and Shamsher informed him that both the accused used to come at the shop and used to take money from Abdur Rahman. Abdur Rahman refused to give money which caused annoyance to both the accused. Thereupon, Younus caught hold of the collar of Abdur Rahman and pulled him down and Yousuf attacked him. The injured was taken in a rickshaw to Civil Hospital but on the way he breathed his last.

3. The applicant presented an application for bail before the learned Additional Sessions Judge, Hyderabad who rejected the same, vide order dated 135-87.

4. The learned counsel for the applicant contended that the applicant was 'not armed with any weapon and, admittedly he was empty handed. No injuries to Abdur Rahman were caused by him, The applicant was holding the injured. The motive of money transaction as given in the F.I.R. is shrouded in mystry. In the mashirnama of the scene of offence the place wherefrom the money, was allegedly taken is not shown. The witnesses have also not supported the prosecution case: The recovery of crime weapon and other articles from the applicant is fabricated and foisted on him. The recovery besides being doubtful also requires further enquiry to establish that it was in the exclusive -possession of the applicant. The mashirnama of recovery of crime weapon was prepared on 14-12-1986 but there is no time given therein. The accused was arrested on the same day at 20-55 hours. Counsel further, contended that there was no pre-planning or pre-consorting and hence it is not proved that the applicant shared the common intention to commit the murder of the deceased. It is he so urged, a clear case of further enquiry within the preview of subsection (2) of section 497 Cr. P. C . The learned counsel sought to place reliance on the following authorities.

(1) Muhammad Nazir v . State 1984 SCMR 206.

In this case the petitioner, alongwith the four other accused, was charged for the murder of deceased. His bail applications presented before the trial Court and the High Court failed. The petitioner then filed criminal petition for special leave to appeal before the Supreme Court. It was contended on behalf of the petitioner that in the F.I.R. the co-accused of the petitioner had been charged for dealing blows to the deceased on his head and the medical evidence showed that he died of the head injuries, and as such the petitioner could not be held responsible for causing the fatal injuries to the deceased. The co-accused in that case was admitted to bail by the learned High Court. The Supreme Court admitted the petitioner to bail.

(2) Amir Ali and another v. State 1986 P Cr. L J 695 (Lahore),

5. The prosecution case was that the petitioner was empty handed and his brother Amir was armed with a pistol confronted the deceased in the street. The petitioner Aamir have exhorted his co-accused kill the deceased, upon-which he fired twice hitting his chest as a result of which he died on the spot, The Lahore High Court held.-

"Admittedly the, petitioner was empty handed and no injury to the deceased has been attributed, to him. Only a verbal Lalkara has been attributed to him. In the circumstances I feel inclined to the view, that a case for his enlargement is male out."

(3)Haji Mohabbat and another v. State 1981 P Cr_L J 1190.

The facts of this case were that the, two applicants and their co-accused K. Bux armed with hatchet blow with sharp side on his fact. One of the' do-accused had a torch whereas the other co-accused was also armed with hatchet. The two co-accused who participated it the assault were merely standing there and went away with the main accused. Bail application was presented on behalf of the last 'mentioned two accused on the ground that they had not actuality participated in the crime and they had not caused injuries to the deceased despite one of the accused M. Khan being armed with hatchet. Relying upon certain decisions mentioned in the said order wherein the proposition of law laid down was that the responsibility of applicant for sharing the intention with main accused of murdering deceased was to be established in the trial Court and till such decision was given on the basis of the evidence which was by then to be recorded such accused was entitled to bail and the applicants were admitted to bail.

6. Mr.S.Sarfaraz Ahmed, learned Asstt: A.G. vehemently opposed the bail application. He submitted that the applicant has played a specific role of pulling down the deceased from the counter and catching hold of him whereby acceleration the commission of the offence. In his submission, Muhammad Bashir and Shamsher, the witnesses, in their 164 Cr.P.C. statements have assigned the said overt act to the applicant. The recovery of the crime weapon from him corroborates the charge of vicarious liability against him. He was not a silent spectator in this case but he had played a definite role in the commission of the offence and as such the cases relied upon by the learned counsel for the applicant were not applicable to the facts of the instant case. The counsel placed reliance on a decision of Supreme Court in Munawar. Ali v. The State, 1981.5 C M R 1092 where it was held that "it is entirely erroneous to think that in the case of Muhammad Akbar and others 1978 S C M R 7 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" He also drew my attention to a decision of this Court recorded by my learned brother Nasir Aslam Zahid, J, in Criminal Miscellaneous Application No. 648/86, Mangio v. Bachayo and other relying upon the decision in Munawar Ali's case reported in 1981 S C M R 1092 held:-

"Just because no injury, is attributed to an accused, it cannot be laid down that a case for bail. is made out if on facts it is established that prima facie section 35 PP C is attracted and the accused -can apparently be saddled with constructive or vicarious 'responsibility."

7. I have given my earnest consideration to the submissions made by the learned counsel, for 'the parties: A perusal of the Supreme Court's 'order in 'Munawar Ali's case clearly indicates that their Lordships of the, Supreme Court while holding that Supreme Court 'had not laid down any rule' 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 and also remarked that 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. If on the allegations appearing on the record the conditions set out in the provisions of law spelling out Constructive1iability are made out, then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life." So also my learned brother' Nasir Aslam Zahid, J has observed:----

"It is, therefore, to be seen in the facts and circumstances of the each case whether the accused can prima facie be saddled with responsibility a/s. 34 PPC at the bail stage for denial of the concession of bail to the accused: ",

In the light of the above, principle enunciated by the Supreme Court .I -would like to examine the facts of this case in order to ascertain whether it is a case wherein at this stage the applicant can be burdened with constructive liability. It is evident from the contents of the F. I. R: that the accused used to come to the deceased demanding payment of money: They had, 'as. per.-prosecution .story, again come to demand the money from they deceased and it was just on the spur of the moment that the .deceased refused which annoyed the accused and one of them, namely, .the applicant, caught hold of him from the collar,, There was undoubtedly no pre-concert for causing fatal injury on the deceased. The co-accused inflicted the injury without there being even a Lalkara or instigation from the, applicant. He had definitely not caused any injuries to the deceased nor .was he armed with any weapon. The alleged role committed by both the accused of having, taken out money from the cash box .(Galla), would need further enquiry.

In the facts and circumstances of the case, in my opinion, section 34 was not prima facie attracted and hence I would admit the applicant to, bail in the sum of Rs.30;000 and P.R. bond in the like amount to the satisfaction of, the trial Court. I would at the same time like to clarify that none of the observations herein made shall prejudice any of the parties at the trial.

S . A . / M-291/ K Bail granted.

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