' MUHAMMAD ALI MAZHAR, J.---The Applicant has preferred this bail application under section 497, Cr.P.C. In Crime No,12 of 2011, lodged at Police Station, Mithani under sections 302, 342, 452, 147, 148, 149, 109, P.P.C.
2. In the F.I.R., the complainant Ghulam Shabbir Khuhawar inter alia avowed as under:-- "On 23-3-2011, the complainant along with Deedar Ali and other family members after taking dinner, closed the main gate and chatting with each other, electric bulbs were on, when at about' 11 p.m. Saw 8 armed persons entered into house by jumping over the compound wall, their faces were opened, to whom we saw on the light of bulbs and identified. They were Ameer Bux having Kalashnikov, Baqar having hatchet, Sadiq Ali with shotgun, Muhammad Ismail having pistol, Nizamuddin Kalashnikov, Qadir Bux having shotgun and 2 unidentified persons having shotguns.
The accused persons overpowered us on the force of weapons confined us along with family members in a room and then accused Baqar caught hold Deedar Ali dragged him and said that we shall kill you. Two unidentified accused persons remained stood out of the room while other accused persons kidnapped Deedar Ali and went away by opening the outer door. Due to fear we maintained silence for some time inside the room and then saw from the window of room the accused persons standing outside were also went away. 24-3-2011 at about 4 a.m. We came out from the room by breaking its door and we searched out foot-prints of accused persons as well as searched Deedar Ali. In the evening dead body of Deedar Ali was found lying in Banana Garden of Liaquat Ali."
3. The learned counsel for the applicant argued that the offence was allegedly committed on 23-3- 2011 while the F.I.R. Was lodged after one day with due deliberation and consultation. He further argued that in the F.I.R. Specific role of catching hold the victim was attributed to co-accused Baqar and no specific role is attributed to the applicant except that he was present at the place of incident along with co-accused. He further argued that though there are eye-witnesses showing the presence of all accused persons but there is no eye-witness of the incident of murder, therefore. At this stage, the applicant cannot be saddled with the responsibility of committing murder of Deedar Ali. He further argued that recdvery of weapon is also doubtful for the simple reason that the licence of weapon is in the name of Haider Ali. He further averred that statements of witnesses under section 161, Cr.P.C. Were also recorded belatedly which creates serious doubt on the story cooked up by the prosecution. In support of his arguments, the learned counsel for the applicant relied upon a judgment reported in 1998 SCM R 454 (Muhammad v. State), in which, the Hon'ble Supreme Court held that no injury was attributed to the petitioner during occurrence and it is alleged that he ineffectively fired, therefore, case was considered to be a case of further inquiry.
He then referred to another judgment reported in 1999 SCM R 1320, (Attaullah v. State), in which also the Hon'ble Supreme Court has held that accused were not alleged to have caused any injuries to the deceased. Order of High Court canceling bail of accused was set aside in circumstances and that of sessions court rightly allowing the bail was restored.
4. Conversely, the learned APG argued that the incident was occurred on 23-3-2011 at 11-00 p.m., whereas the F.I.R. Was lodged on the next date at about 5-00 p.m. And postmortem was conducted on 24-3-2011 at 6-00 p.m. And on the same day, the statements of Nadir Ali and Ghulam Hur were recorded. He further argued that the .Present applicant was arrested on 25-3-2011 and recovery of weapon from the applicant was made on 4-4-2011. The learned APG in support of his arguments referred to my own judgment reported in 2011 M LD 1171 (Mouloo Ahmed v. State), in which, the bail was declined by me and the question of vicarious liability at the bail stage was discussed in detail keeping in view the dictum of Hon'ble Supreme Court of Pakistan reported in PLD 2001 SC 378, wherein it was held by the Hon'ble Supreme Court that common intention presupposes pre- concert and requires pre-arranged plan, because before an accused can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of common intention of them, inference of common intention should never be reached unless its necessary inference deducible from the circumstances of the case, all that is necessary is either to have direct proof or prior concert or proof of circumstances which necessary led to an inference or that incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.
5. After hearing the arguments of learned counsel for the applicant and learned APG, I have reached to an irresistible conclusion that in the F.I.R., it is clearly mentioned that eight armed persons had entered into the house of the complainant by jumping over the compound wall and their faces were opened and the complainant specifically named eight persons including the applicant and two unidentified persons carrying automatic weapons except Baqar- Ali who is stated to be armed with hatchet. It is further stated in the F.I.R. That present applicant was armed with shotgun. The allegation against the accused persons is that they had overpowered the complainant party on the force of weapons and confined them along with family in a room and then accused Baqar caught hold Deedar Ali, dragged him and said that they will kill Deedar Ali. It is further stated that two unidentified persons stood out of the room while other accused persons kidnapped Deedar Ali and went away by opening the outer door. Thereafter on 24-3-2011 at about 4-00 a.m. The complainant party after breaking the door came out from the room and searched out the footprints of accused persons and found the dead body of Deedar Ali in banana garden.
Keeping in view the aforementioned circumstances and the recovery of dead body on the next day after making search, the delay attributed to the complainant in lodging the F.I.R. Cannot be treated fatal to the prosecution case at this stage. The A challan has already been submitted in which eight accused persons have been shown absconders while applicant is in custody while the name of Abdul Karim Jalbani was shown in Column No, 2 and was released under section 497, Cr.P.C. In the Column of case property, one shotgun of .12 bore in working condition, blood-stained earth collected from the place of occurrence, one empty of .12 bore cartridge and blood-stained clothes of deceased have been shown. In the present case, there is no eye-witness of the murder but the eye-witnesses of trespassing and jumping over the compound wall and kidnapping of Deedar Ali are available. The dead body was also recovered and recovery of weapon was also made from the present applicant. Though the learned counsel for the applicant argued that the weapon recovered from the present applicant is duly licensed in the name of another person but according to my own view the murder has been committed and recovery was made on the pointation of applicant and at this stage it is immaterial to consider whether the weapon was licensed or unlicensed or licensed in the name of any other person and not the present applicant. The present applicant was properly identified by the complainant with shotgun and same was also recovered from his custody. There is no denial on the record to show that the applicant was not present at the place of incident and in my judgment reported in 2001 MLD 1171, I had dealt with the principle of vicarious liability in detail and held that vicarious liability can be looked into even at bail stage if from the F.I.R., the accused appears to have acted in pre-concert or shared the community of intention with his co-accused. The Court on the basis of material placed, such as F.I.R. And statements recorded by the police even at bail stage can consider the question whether the case of constructive liability is made out or not. Paramount consideration is whether the accused was a member of an unlawful assembly or whether the offence has been committed in furtherance of the common object.
6. In the case in hand, the undeniable presence of applicant on the place of incident duly armed with weapons shows his motive of pre-concert in furtherance of common object. It is clear from the allegation levelled in the F.I.R. That accused persons including the present applicant c duly armed with weapons jumped over the wall, thereby committed the offence of house trespass and unlawfully confined the complainant party and all accused persons allegedly became a member of unlawful assembly to commit an offence with common object, therefore, at this stage in my view this is not a case of further inquiry. Every hypothetical question which can be managed would not make the same a case of D further inquiry simply for the reason that same can be answered by trial Court subsequently after evaluation of evidence. Accused in order to release on bail must further show that there is no reasonable ground for believing that he has committed the offence as alleged against him. Mere possibility of further inquiry which exist, almost in every criminal case is no ground for treating the matter as one under subsection (2) of section 497, Cr.P.C. The source of identification is prominently mentioned in the F.I.R. And the prosecution witnesses in their statements have implicated the present applicant and there are circumstances available making out a prima facie case against the applicant and other co-accused for having acted in furtherance of common object. It is also an important aspect of the case that no explanation of whatsoever is rendered to justify the presence of applicant at the place of occurrence along with other accused which leads to a tentative view that the applicant shared common intention to commit the murder of deceased. It is also well-settled principle of law that at the stage of bail deep scrutiny of the case is not permissible nor the requirement of law but at the same time, the court of law is not precluded from tentative perusing the evidence of the eye-witnesses, recovery witnesses and other connecting E evidence and to form a tentative opinion as to whether the accused is prima facie connected with the offence or not. While deciding the bail application the court need not to enter upon detailed appreciation and examination of evidence, however the question cannot be decided in vacuum and court has to look at the material available. If the answer is in positive in forming the tentative opinion as to whether the accused is prima facie connected with the commission of offence of murder or where the sentence provided is either death or life imprisonment then the refusal of bail is a rule while grant of bail is an exception. The case-laws relied upon by the learned counsel for the applicant is distinguishable to the facts and circumstances of the case in hand.
7. The upshot of above discussion leads me to a conclusion that there are no reasonable grounds to. Believe that the applicant has not committed any non-bailable offence, therefore. Bail application is dismissed. Since the challan has already been submitted in the trial Court, therefore, learned trial Court is directed to conclude the trial preferably within a period of three months. The observations made hereinabove are tentative in nature and would not affect the case of either party.