' As both these bail applications arise out of the same F.I.R. Viz. No,2 of 2004 of Police, Station, Tando Jam, they are being disposed of through this common order.
2. Mr. Qurban Ali Chohan, learned counsel appearing for the applicants, Muhammad Khan alias Dodo and Bashir Ahmed in Criminal Bail Applications Nos.259 of 2004 and 260 of 2004 has submitted that as per the Prosecution case, the allegations against these two applicants is one of ineffective firing upon P.W. Wasi Ahmed as the latter took shelter in the manger (Ahero) available at the scene of the crime and hence did not sustain any injury. Secondly per learned counsel none of the applicants repeated their fire upon P.W. Wasi Ahmed although he was completely at their mercy. In these circumstances, the case of these two applicants is one of further inquiry insofar as the attempt to murder P.W. Wasi Ahmed is concefned. In support of this proposition learned counsel has relied upon: Attaullah v. The State 1999 SCM R 1320; Faraz Akram v. The State 1999 SCM R 1360; Farzand Ali v. Taj 2000 SCM R 1854; Aftab Hussain v. The State 2000 SCMR 1467; Yaroo v. The State 2004 SCMR 856; Muhammad v. The State 1998 SCM R 454 and Naik Muhammad v. The State 2000 PCr.LJ 1229. Learned counsel has also relied upon the meaning of the word "ineffective" as defined in various Dictionaries viz. Insufficient to produce the desired result, that which does not have any effect, inefficient, incompetent etc.
3. Secondly, per learned counsel, according to the sketch of the Autaq (Guest House) where the incident took place a few mangers are available beside the wall, however, it cannot be believed that enough space was available between the manger and the wall where P.W. Wasi Ahmed was able to hide in order to save himself.
4. Finally, per learned counsel the accused were recognized as the bulbs were on in the Guest House; however, the same were not taken into custody of the police in which event their identification is doubtful. For this proposition he has relied upon Muhammad Anwar v. The State 2002 SCM R 1289 and Bashir Ahmed v. The State 1996 SCM R 308.
5. On the other hand, Mr. Mashooq Ali Samon, learned A.A.-G., has submitted that a positive role had been given td both the accused viz. Firing directly at P.W. Wasi Ahmed who luckily escaped injury/death by hiding in the manger. Per learned A.A.-G. The accused were known to the complainant party and hence there could not be any question of wrong identification. Further both the applicants had gone to the Guest House fully armed with no other purpose than to do away with the deceased and the P.Ws. Hence, they most certainly shared the common intention along with other accused for the murder of the deceased. In support of his submission he has relied upon Ghulam Nabi v. The State 1996 SCM R 1023; Munawar v. The State 1981 SCM R 1092; Punhal v. The State PLD 2002 Kar. 99; Abdul Malik v. The State 2000 PCr.LJ 1816 and Todo v. The State 2001 PCr.LJ 649.
6. Mr. Jawaid Leghari, appearing for the complainant has supported the learned A.A.-G.
7. I have heard both the learned counsel as well as learned A.A.-G. And my conclusions are as follows.
8. As regards the issue of common intention usually at the bail stage, per settled law this is one of further inquiry unless sufficient evidence is available to hold otherwise as each case turns upon its own particular facts. In the present matter as regards sharing of the common intention by the applicants along with other accused for the murder of the deceased and injuries caused to P.W.
Jehangir, the only evidence available is that the applicants had gone fully armed to the Guest House and also fired at P.W. Wasi Ahmed which does not necessarily mean that they shared a common intention with the co-accused to do away with the deceased or injured P.W. Jehangir.
Hence, in my view, at this stage, the applicants cannot be connected to the murder of the deceased and injury to P.W. Jehangir on the theory of common intention. The cases cited by the learned A.A.-G. In my view are distinguishable as therein it was found that either the accused had facilitated the murder of the deceased or had caused injuries to other persons in furtherance of their common intention. Hence, in Munawar v. The State (supra) the Honourable Supreme Court declined bail to the petitioner on the basis that his pistol shot had caused injuries to one of the witnesses. Similarly, again in the case of Ghulam Nabi v. The State the Honourable Supreme Court declined bail to the petitioner on the basis that he along with co-accused had come fully armed at the house of the complainant and whereas he did not use his weapon (hatchet) to attack the deceased who was killed by the co-daccused, his involvement in the crime on the basis of common intention had been prima facie established. In this case the petitioner had been threatening the deceased who was his wife with dire consequences and hence the Honourable Supreme Court was of the further opinion that the petitioner had the motive to do away with the deceased. In the case of Abdul Malik v. The State (supra) a learned Single Judge of this Court came to the conclusion that where the applicant/accused was seen firing at the opposite party due to which an innocent bystander died, he could be held vicariously liable for the death although the fatal shot may not have been fired by him. Finally, again in Todo v. The State (supra) a learned Single Judge of this Court also came to the conclusion that where the co-accused prevented the eye-witnesses from interfering in the murder of the deceased by the main accused, they could certainly be held liable for such offence on the basis of common intention. Similarly, in the case of Punhal v. The State (supra) I had declined bail to the co-accused on the basis that he had caught hold of the deceased while the main accused had fired upon him.
9. I would next take up the issue whether these two applicants/accused at this stage can be connected to the crime of making an attempt over the life of P.W. Wasi Ahmed. In this regard the pieces of evidence available are the F.I.R. Itself and the statement of the P.Ws. Which corroborate each other. It would be seen that the incident per the prosecution case occurred at night and the P.Ws. Inside the Autaq viz. Jehangir and Wasi Ahmed were able to recognized the accused in the light of a single bulb burning inside the Guest House as per the sketch of the scene available in the police file. Similarly, the complainant and P.W., Muhammad Bux were also able to recognize all the accused including the applicants while they were coming outside the Guest House after having attacked the deceased and the P.Ws. This too from the light of a single bulb available outside the Guest House. In these circumstances, in my opinion, as both the parties were known to each other, there could hardly be any possibility of wrong identification.
10. As regards the issue of ineffective firing which learned counsel for the applicants has stressed, it would be seen that as per settled case law this would mean firing without any target i.e, in the air or else where per Faraz Akarm v. The State, Aftab Hussain v. The State and Naik Muhammad v. The State (supra). However, the allegation against the present accused is that both of them fired at P.W. Wasi Ahmed who ducked down and hid himself in the manger thereby saving his life.
Consequently it cannot be said that this was a case of ineffective firing. Nevertheless, it would also be seen that the accused did not repeat their fire upon P.W. Wasi Ahmed who was completely at their mercy. Hence, prima facie, it appears that they did not have any intention to kill him. I have reached this conclusion since intention is a subjective state of mind and indeed difficult to decide at the bail stage unless there is compelling evidence available for a positive deduction.
Consequently, in the circumstances of the case in my opinion, this would then become a question of further inquiry.
11. For all the foregoing reasons I would allow these two bail applications provided the applicants submit solvent surety in the amount of Rs,2,50,000 (Rupees Two Lacs Fifty Thousand) each and P.R.
Bond in the like sum to the satisfaction of the learned trial Court.