The facts which are common to these cases are as follows :- ' Applicant Shabbir Hussain (applicant in Criminal Bail Application No, 39 of 1979) and respondent Mohammad Shah (respondent in Criminal Miscellaneous Application No, 69 of 1979) are standing trial on a charge under section 302/34, P. P. C. In relation to the murder of one Khursheed Hyder committed on 10th November, 1978 at about 9-30 p. m. The report in regard to the incident was lodged by Mst. Naseena Zohra, the daughter of the deceased, at Nazimabad Police Station within 2i hours of the incident. The facts disclosed in the report are that the deceased was residing at House No,. 30, People's Colony along with complainant Mst. Naseem Zohra. The complainant heard some noise and went towards the shop of the deceased and saw that respondent Mohammad Shah had caught hold of the deceased from the front and asked applicant Shabbir Hussain to attack (maro) the deceased whereupon the latter gave a knife blow on the back of the deceased. Cries were raised, upon which both the assailants spared the deceased and ran away.. Applicant Shabbir Hussain had left the weapon of offence at the scene.
2. An application for bail was made before the 11 Additional Sessions Judge, Karachi, who rejected the same in regard to applicant Shabbir Hussain but allowed bail to respondent Mohammad Shah on the ground that he had only caught hold of the deceased and his liability by reason of section 34 of the Pakistan Penal Code had yet to be determined. Shabbir Hussain had made the present bail application whereas complainant Mst. Naseem Zohra had made the connected application for cancellation of bail granted to respondent Mohammad Shah. I have heard the Advocates for the parties and Mr., Mazhar-ul-Haq Hassan Ali, Assistant Advocate-General for the State,
3. The case of applicant Shabbir Hussain does not project any difficulty. His name appears in the First Information Report as the actual assailant, who, on being asked by Mohammad Shah to attack, inflicted a knife blow on the back of the deceased causing his death. No evidence has yet been recorded and it is, therefore, premature to consider the question of credibility of the complainant Mst. Naseem Zohra. I must, however, record that the first information report has not disclosed the names of witnesses but the effect of such circumstances would be for the trial Court to consider on the basis of evidence that may be laid before it.
4. The case of Muhammad Shah has been distinguished by the learned Additional Sessions Judge on the ground that he had only instigated the co-accused to attack and he had only caught hold of the deceased. The process of reasoning adopted by the learned Additional Sessions Judge does not appeal to me because it is alleged that both the accused had come A together and while Mohammad Shah had caught hold of the deceased th co-accused Shabbir Hussain who is the son of Mohammad Shah on bein asked to attack inflicted a knife blow. The First Information Report states that there was a background of enmity, the particulars whereof have not been disclosed.
5. Although I am unable to agree with the reason adopted by the learned Additional Sessions Judge yet I am of the view that bail granted to respondent Mohammad Shah should not be cancelled. For attracting section 34, P. P. C. It has to be established that the person sought to b saddled with responsibility was animated with common intention, as distinct from similar intention.
The First Information Report does not disclose if the knife used by Shabbir Hussain was a visible to responden Mohammad Shah. The possibility of respondent Mohammad Shah not knowing about the availability of the knife with applicant Shabbir Hussain cannot be excluded. What is more that respondent Mohammad Shah had asked applicant Shabbir Hussain to attack (Maro) the deceased. These words do not necessarily connote an instigation to cause death. There is a possibility that respondent Mohammad Shah only intended the giving of a beating to the deceased. The nature of enmity between the accused and the deceased is also not disclosed so that it cannot be said that the dispute was of a magnitude that might persuade both the accused to commit the crime of murder.
6. In the background of such facts and circumstances, as are detailed ;n the preceding paragraph, the mere fact of respondent Mahammad Shah having caught hold of the deceased and asking Shabbir Hussain to attack by uttering the word "Maro" would not, in absence of other evidence, be sufficient to attract the application of section 34, P. P. C. A long list of decided cases namely Mahboob Shah v. The State (1) ; Hussain v. The State (2) ; Ali Mohammad and another v. The State
(3) ; Abdul Hakim and 2 others v. The State (4); Saadat Mian v. The State (5) and Abdul Sattar and another v. The State (6) may be usefully referred to. On the present state of material it is not necessary to draw an inference that respondent Mohammad Shah must be burdened with liability of having common intention to commit murder.
7. In these circumstances I do not consider this case fit for cancellation of bail. I would, however, leave it open to the trial Court to consider whether respondent Mohammad Shah should continue on bail, but only at the stage when evidence is recorded.
8. In the result both these applications are dismissed.
(1) AIR 1945 P C 118 (2) 1969 SC MR 454
(3) PLD 1965 Kar. 135 (4) PLD 1971 Kar. 239
(5) PLD 1963 Kar. 745 (6) PLD 1979 Kar. 72 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.