Mubarak Ali accused (petitioner) in case for the offence under section 302/34, P: P. C. Has applied for grant of bail. The petitioner along with two others namely Muhammad Ramzan and Hakam Ali stand charged for the murder of Nazir Ahmad deceased said to have been committed by the accused in furtherance of a common intention. The first information report lodged by Sardar Muhammad father of the deceased who claims to have witnessed the occurrence alleges that the parties had a quarrel over cutting of a shisham tree. Nazir Ahmad deceased stepped forward to prevent the accused from taking away the wood of the tree in question. He was grabbed by Hakam Ali and dealt an injury by Muhammad Ramzan in the head with wooden post (munni) of the bullock cart. Muhammad Hussain a brother of the deceased tried to intervene. He was caused two injuries by the petitioner with sota in his hand. Nazir Ahmad was rushed to the hospital where he succumbed to the injuries after a few hours. Injuries suffered by Muhammad Hussain allegedly at the hands of the petitioner, were declared simple. The petitioner and Hakam Ali applied before learned Additional Sessions Judge for grant of bail. The application succeeded partly in that that Hakam Ali who had allegedly held the deceased in his grip was admitted to bail. The petitioner was declined the concession of bail for the reason that t is extremely difficult for me to hold at this stage that the petitioner No. 2 Mubarak Ali had not acted in furtherance of a common intention with the principal accused namely Ramzan. On the contrary application of section 34, P. P. C.
Stands clearly attracted in the given state of affairs."
2. Learned counsel for the petitioner contended that the learned Additional Sessions Judge had misconceived and misapplied the rule of vicarious liability. According to allegations in the First In-- formation Report this unfortunate incident was the result of a chance encounter. The petitioner who had not caused any injury to the deceased could not have preconceived that the deceased will be injured mortally by Ramzan. The facts of the case even if stretched unduly will not justify the view that the petitioner had shared commonness of intention with the principal accused in the case.
Common intention within the meaning of section 34, P. P. C. Implies a criminal act done in concert persuant to a pre-arranged plan. The contention which learned counsel for the State was unable to meet has a substance in it. I would refrain from launching upon a detailed discussion on the requirements of applicability of rule of constructive liability lest my observations although tentative and incidental to the disposal of the instant application should prejudice future course of proceedings. Prima facie the petitioner who had not caused any injury to the deceased does not appear to have committed an offence punishable with death or life imprisonment. This view is supported by the precedent case Mahla and others v. The State (1976 P Cr. L J 1095). In that case of double murder, the accused who had not caused any injury to the two deceased but had caused simple injuries to the witnesses were granted bail. The view held in the case was affirmed by their Lordships of Supreme Court in a recent case Muhammad Akbar and others v. The State (1978 SCMR 7). It was held by their Lordships that the case of Fateh Khan and Ahmad Nawaz petitioners (who had not inflicted any injury on the deceased and who were alleged to have caused simple injury to the complainant) was distinguishable and the order o learned Additional Sessions Judge allowing them bail which was reversed by the High Court was not liable to interference. In the result, the application succeeds and petitioner is allowed bail in the sum of Rs. 10,000 (Rupees ten thousand) with two sureties with personal bond in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Faisalabad'