' SHAHID ANWAR BAJWA, J.---The applicant in this case is one Shoukat son of Ahmed Chang. F.I.R.
No,100 of 2007 was registered at Police Station Jati District Thatta on 13-4-2009. It was alleged in the F.I.R. That on 12-4-2009 hot words were exchanged between the present applicant and his brother Bhooral on one side and complainant's on the other side. The same night at 1-00 a.m.
Complainant stated that he heard cries coming from his Otaq he took his torch and rushed towards Otaq and saw his two other family members holding torches. In the torch-lignt he saw that the present applicant was holding hands of Abdul Wahid and within sight of the complainant other accused Bhooral gave hatchet blow at the forehead of Abdul Wahid. After giving blow Bhooral tried to pull out hatchet but could not do so. Upon raising noise by the complainant and his family members accused ran away due to the darkness.
2. Bail application was rejected by the Court below on 15-8-2009 by observing that the role of the accused is that of active participation and accused being released on bail automatically will tamper the prosecution evidence. The Court further held that offence falls within ambit of prohibitory clause. Consequently bail was rejected.
3. Learned counsel for the applicant submitted that role attributed to the applicant in the F.I.R. Is merely that of holding hands. Applicant is not alleged to have given fatal blow or of having given any blow at all. He referred to Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357 and Shahid v. The State 1994 SCMR 393 and Hakim Ali Toyo v. The State 2008 PCr.LJ 1512.
4. On the other hand, learned APG strenuously opposed the bail application. He submitted that the present applicant held hands of the deceased and therefore is vicariously liable for facilitating the murder. He relied upon Munawar v. The State 1981 SCMR 1092, Mst. Barkat Bibi v. Gulzar and another 1979 SCMR 65, Haji Punhal v. The State PLD 2002 Karachi 99 and Ijaz Masih v. The State 1999 PCr.LJ 343.
5. I have considered the submission made by the learned counsel and have gone through the record as well as cases cited at the bar. The facts alleged in the F.I.R. Are simple. It is alleged that the present applicant held hands of the deceased and co-accused Bhooral inflicted sharp side hatchet blows to his hands. The Court below that the present applicant had an assigned an active role and therefore he was a predominant partner in the crime.
6. In the case of Basharat Hussain (Supra) father of the petitioner was murdered by Abdul Qayyum, who was armed with a Khunda and it was alleged that the respondent No,1 had held the deceased and disabled him from resisting. Fatal blow was given by the Abdul Qayyum on head of the deceased. Sessions Judge allowed bail and cancellation of bail application was dismissed by the High Court. Supreme Court observed that respondent was charged with facilitating murder of the deceased and it had been rightly pointed out by the High Court that this question required further inquiry and therefore, the accused was entitled to bail.
7. Second case relied upon by the counsel for the applicant is Shahid's case (Supra). F.I.R. Cum- Dyeing Declaration in that case was lodged by Shahzada. It was stated that a day earlier there had been a petty dispute between the injured and Rashid, which was patched up. On the morning of the occurrence brother of injured was abused by Rashid who complained to his father. Matter was again compromised. After such compromise when the parties were going back, at some distance from the house accused petitioner Shahid along with co-accused Rashid were standing .And blocked on their way. Shahid caught hold of the deceased while Rashid co-accused gave him `Chhuri' blows and injured him on his abdomen and right hand. Father of the accused petitioner also gave kicks and fist blows to the injured. Injured subsequently after recording his dying declaration succumbed to his injuries. Bail application was rejected by the Magistrate in respect of Shahid and Rashid. However, bail was allowed to the father. Bail application was declined by the Sessions Judge and High Court also dismissed the bail application. In the Supreme Court it was contended that the petitioner had attributed role of his having caught hold of deceased while the co-accused inflicted `Chhury' blows. It was further contended that similar role was attributed to the father and the later having been extended concession of bail, on the principle of consistency the petitioner was also entitled to grant of bail. It was further contended that in view of statements of prosecution witnesses during the investigation it is to be determined whether petitioner facilitated commission of offence for application of section 34, P.P.C. And this made the case of further inquiry.
Consequently Supreme Court allowed bail.
8. The third case relied upon is Hakim Ali Toyo (Supra). In this matter complainant stated that his father being a 54 years of age had a decoration shop and when on 27-2-2008 complainant along with his uncle reached the shop they found that their servant was causing hatchet injuries to his father while two unknown persons had caught hold of the father. On seeing the complainant party three persons escaped. Thereafter complainant came and found that his father had received many injuries. Father told the complainant that one Wali Muhammad had caused him such injuries. Bail application was rejected by the trial Court. The High Court bail observing that no overt act had been attributed to the applicant and from perusal of police papers it appeared that when applicant was arrested no material was available with police to connect him with the offence. He was arrested on the basis of statement made by the co-accused which statement was not sufficient to connect him with the alleged offence. Basharat Hussain's case was relied upon. It may be pointed out that in the case of Hakim Ali Toyo, at the time of incident nobody identified accused and it was only statement of co-accused which connected him with the offence. It was these circumstances which weighed with the Court.
9. On the other hand learned counsel for the State firstly relied upon Munawar's case (Supra). In this case incident was said to have taken place on 30-1-1978. All the four accused were named in the F.I.R. And it was stated that the petitioner as well as two others were carrying pistols whereas fourth one was carrying Danda. Later on it was stated that even the fourth accused was credited with a .12 bore pistol and on account of this discrepancy he had been allowed bail, whereas the remaining three accused had been refused this concession. The High Court had observed that the petitioner and his companions were armed with pistols and specific overt act had been attributed to them and therefore, there was no ground for grant of bail. Supreme Court observed that it had been alleged that the petitioner and his companions had come fully armed with deadly weapons, and that it was in pursuance of their common intention that one of them fired at the deceased, whereas the shots fired by the petitioner before Supreme Court caused injuries to the complainant.
Supreme Court further observed that it is not possible to hold that the petitioner did not share any common intention with the accused whose shot actually hit the deceased.
10. Second case relied upon by the learned counsel for the State is of Mst. Barkat Bibi (supra). Facts of the case were that two or three months prior to the date of occurrence deceased, daughter of the petitioner, was teasted by Gulzar. However, matter was patched up. On the day of occurrence while the daughter was standing in front of her house she was again teased by one Afzal alias Kala, whereupon she abused him. Afzal left the spot after issuing threats. A little while later when petitioner and her daughter were having breakfast Kala armed with dagger and Gulzar came to their house. Gulzar dragged deceased out of the house. The mother/petitioner tried to rescue her.
Gulzar caught hold of deceased and Kala inflicted three dagger blows. Bail application was rejected by the Additional Sessions Judge. However, High Court ordered his release on bail on the ground that petitioner before it was not armed and no motive of his own had been established. It was contended before the Supreme Court that respondent colluded with the co-accused and played an active role in the transaction by catching hold of the deceased. It was further contended that since challan has been filed it was not a case of further inquiry. The Supreme Court held that in view of the specific role attributed to the respondents by the petitioner/eye-witnesses/ complainant provisions of section 34, P.P.C. Were prima facie attracted. It was further held that since challan had been submitted, however, since no date had been fixed for the trial mere submission of challan was not a ground on which bail would be granted.
11. Third case relied upon by the counsel for the State in Haji Punhal (supra). It was alleged that Haji Punhal was grappling with Ali Murad and accused Alam fired with T.T. Pistol at later and killed him.
Single Bench of this Court observed that Haji Punhal can he connected with the crime as he facilitated the murder of the deceased and therefore he can be held vicariously liable for the act.
12. It may be pointed out that while the applicant relied upon Basharat Hussain's and Shahid's cases, the State counsel relied upon Barkat Bibi's case. The Hon'ble Supreme Court observed that where the co-accused takes an active part in the crime in question viz. Cause injury to the deceased or facilitates the other co-accused to do away with the deceased, issue of vicarious liability at the bail granting stage has to be decided against the co-accused.
13. Last case relied upon by the State counsel is Ijaz Masih's. Facts disclosed in the F.I.R. By complainant, wife of deceased were that she was resident of a house. In upper storey of a house situated in that Mohallah lived one Khushi Mashih. On the date of occurrence engagement of son of Khushi Masih took place and his entire family had gathered on the occasion. Ceremony ended at midnight. When the guests were leaving, there was so much of noise that it awakened complainant's family. Consequently complainant complained to Khushi Masih that her husband did not like being disturbed while asleep. This offended Khushi Masih and his sons threatened complainant's husband. One of sons of Khushi Masih took out Chhuri from underneath his clothes and another son caught hold of complainant's husband, Bashir Masih. Shahzad Masih gave Chhuri blows to Bashir Masih in his abdomen. Again Barkat Bibi case was relied upon. It was observed that had he not held deceased with a Japha as alleged, perhaps it would not have been that easy for Shahzad Masih to have inflicted Churri blow on the deceased.
14. In Shahid's case bail was allowed primarily in view of the statement during investigation by one of the witness and it was in view of that statement that the Court observed that evidence of application of section 34, P.P.C. Made out a case of further inquiry. In Barkat Bibi's case, role of Gulzar was that he caught hold of Mst. Parveen Akhtar, dragged her from the house and then caught hold of her and consequently Kala inflicted three dagger blows to the deceased. Barkat Bibi's case has been relied upon in Haji Punhal's case and Ijaz Masih's case by Single Benches of this Court and Lahore High Court.
15. Reliance was primarily placed by learned counsel for the applicant on Basharat Hussain's case.
In Basharat Hussain's case the allegation was that Ghulam Hussain caught hold of deceased and disabled him from resisting. Report is too sketchy to bring out all the details. In the present case, it is alleged that the present applicant was holding hands of the deceased and then co-accused gave hatchet blows to the forehead of the deceased. Had the applicant had not held his hands deceased might have been able to rescue himself either by evading the blow or by trying to run away. Therefore as has been held in the case of Haji Punhal the present applicant had active part in the crime in question because he facilitated other co-accused in doing away with the deceased.
Issue of vicarious liability at the bail granting stage had been decided against the co-accused in that case.
16. In this case the applicant is prima facie connected with the offence. He facilitated the commission of crime and appears to be vicariously liable.
17. Consequently this bail application is dismissed.
18. Needless to observe that the trial Court while deciding guilt or innocence of the person standing trial before it, shall be in no way, influenced by any of the observations made above.