1. ' SHAHID ANWAR BAJWA, J.--F.I.R. No. 84 of 2010 was recorded at Police Station, Dubar on 10-9-2010 at 2-00 p.m. For an incident alleged to have taken place at 6-00 p.m. Of the previous day.
2. Complainant stated that one week earlier Sattar Jagirani came to him and demanded hand of his daughter which he refused and this annoyed party of Sattar Jagirani. On the fateful evening, complainant, his wife and nephew were present in their house when someone called from outside the house: all the three went to answer the call and saw two applicants in Criminal Bail Application No.886 of 2010 (Gohar and Mansoor; Gohar had a gun in his hand and Mansoor had-a. K.K in his hand), applicant in Criminal Bail Application No. 973 of 2010 (Yahya) and four other persons variously armed. Yahya and Gohar asked the complainant whether he was prepared to give hand of the girl or not and on his refusal. Yahya instigated all the accused persons and on such instigation, three co-accused persons caused hatchet blows on the head of wife of the complainant. Another co-accused caused hatchet blow to nephew of complainant and yet another two co-accused caused hatchet blows to the complainant. Gohar and Mansoor are alleged to have fired with intention to harass. The fire reports attracted neighbors and the accused fled away. Wife was taken to Police Station and then to Hospital where she succumbed to her injuries.
3. ' Learned counsel for the applicants submitted that allegation against Gohar and Mansoor are of ineffective firing and they have not caused injury to anyone and no empties have been recovered.
4. He submitted that there is delay of 20 hours in lodging of F.I.R. And there is delay of 13 days in recording statements of witnesses: He further submitted that allegation against Yahya is only of instigation though he was armed with a hatchet. He relied upon Sultan Ahmed Siddiqui and 3 others v. The State, PLD 2010 Karachi 110, Muhammad Hashim Khoso v. The State, 2011 PCr.LJ 1580, Darya Khan and others v. The State, 2006 M LD 1958 and Manzoor Hussain and another v. The State 2011 SCM R 902.
5. ' Learned counsel for complainant submitted ' that complainant himself was injured as he received sharp side of hatchet blow on his head and he took his wife first to Hospital and, thereafter, lodged F.I.R. And, therefore, delay in lodging of F.I.R. Is adequately and satisfactorily explained. He submitted that it is a case of preplanned murder and after preparation for the reason that hand of daughter was refused, murder has been committed. He submitted that in such like cases, question of vicarious liability applies with full force. He relied upon Umar Hayat and another v. The State 2009 PCr.LJ 1058. He submitted that this is not a case of murder, which took place in the fields or on the way and it is not a case of any previous enmity. He submitted that no mala fide intention has been alleged against the complainant. He relied upon Muhammad Sadiq v. Sadiq and others, PLD 1985 SC 182, Siraj v. State 2000 PCr.LJ 1220.
6. ' Learned D.P.-G. Submitted that delay has been adequately explained and it is a case of common intention. He submitted that P.Ws have supported version of complainant and there is medical evidence, which is in line with the ocular evidence.
7. ' I have considered the submissions made by the learned counsel and have also gone through the record.
8. ' It may be appropriate to first to refer to the case-law cited by the learned counsel. Sultan Ahmed Siddiqui's case (supra) was related to land and it was alleged that wall of a PAF base was demolished. Case is, therefore, clearly distinguishable. In Muhammad Hashim's case (supra) it was alleged that Hashim gave Hakal and his nephew and son fired causing death of a person. It was observed that only role against the applicant was that of giving a Hakal. It may be pointed out that incident occurred as the complainant came out of his house and was close to a, shop. In Darya Khan's case (supra) deceased had died of firing by co-accused while the applicant was alleged to have resorted to aerial firing. In Manzoor Hussain's case (supra) it was observed by the Supreme Court, in a bail before arrest, case as under:- "It would be seen that bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that indeed co-accused played a role in the crime in question."
9. ' On the other hand, learned counsel for complainant relied upon Umar Hayat's case (supra).
10. Complainant, his father and brother were coming home after grazing their animals. They were attacked by Umar Hayat, armed with a lathi and three other persons. One co-accused raised Lalkara whereas other two accused gave hatchet blows. Umar Hayat was alleged to have caused a lathi injury. A Single Judge of Lahore High Court held that there was common intention and, therefore, refused bail. In Muhammad Saddique's case (supra) one of the factors, which influenced the Court was abscondance and, therefore, it is distinguishable. Lastly, Siraj's case (supra) was relied upon. It was alleged that Siraj along with co-accused armed with deadly weapons came and started firing. One coaccused's shot hit father of the complainant, who died. It was observed by a Single Judge of Peshawar High Court that role of ineffective firing does not make a case of further inquiry where reasonable grounds for believing existence of the accused committing a non-bailable offence are there.
11. In the present case, Gohar and Mansoor are alleged, to have fired after hatchet blows had been given. If they had intention to commit murder, it would have been much simpler for them to use firearms than to wait for the incident to occur, hatchet blows to have found their target and resort to firing thereafter. As far as Yahya is concerned, firstly, F.I.R. Reveals that it is his father, who demanded hand of daughter of the complainant and, secondly, it is Yahya, who, after door of the house of the complainant was knocked at, again demanded hand of the girl and upon such refusal, Yahya instigated the others to commit murder). There is no statement about Gohar, at this stage, that he instigated others to commit murder. Case of Muhammad Hashim (Supra) is distinguishable because in that case incident occurred at a public place near a shop whereas in the present case, the incident occurred right outside door hedge of house of the complainant and the alleged reason indicated mental makeup of the persons, who came there to knock at the door of the complainant. Therefore, as far as case of Gohar and Mansoor is concerned, it is clearly distinguishable from the case of Yahya. Mansoor is only alleged to have resorted to firing after the incident of hatchet blows and Gohar, apart from what is alleged against Mansoor, is alleged to have -- after the door was knocked at and the complainant party came out -- enquired whether the complainant was prepared to give hand of girl or not. Thereafter he did not resort to Hakal. It was Yahya, who appears to be the leader of the gang, who knocked at the door and then, who gave Hakal.
12. Generally speaking, in cases where only Hakal or Lalkara is alleged, the Courts extend indulgence and grant bail on the ground that it is yet to be seen as to what was the intention behind such Lalkara and the circumstances in which such Lalkara was given but this appears to be a case of a different nature. Hand of a girl was demanded: it was refused: such refusal was given to father of Yahya and this infuriated Yahya to the extent that he gathered a gang of persons, came barging to house of the complainant, knocked at his door and when the complainant came out, it appears, impetuously demanded whether complainant is prepared to give hand of the girl or not and upon refusal, instigated others not to spare complainant party and to commit their murders.
13. Consequently, Criminal Bail Application No.886 of 2010 is allowed and bail, already granted to the applicants, is confirmed on the same terms and Criminal Bail Application No.973 of 2010 is dismissed.