SALMAN HAMID, J.---Mst. Guddi was married to deceased Aijaz Ali. Aijaz Ali sometime back before his gruesome murder divorced her. This divorce, it seems antagonized relatives of Mst. Guddi. On 22-8-2010, the four accused, named in the F.I.R. Lodged by one Taj Muhammad son of Muhammad Mithal with Police Station Badeh, under sections 302 and 34, P.P.C. Came to Aijaz Ali, all armed with pistols and murdered him.
2. In terms of the F.I.R, Ali Akbar, Nadeem. (the present applicant), and Haseeb caught hold of deceased Aijaz Ali, and Aamir Bhatti one of the accused caused dagger blows to Aijaz with the result that he expired, when he was on his way to the hospital. All the accused after murder of Aijaz Ali fled away.
3. The learned counsel for the applicant argued that the injury by which the deceased had died is not attributed to him but to one Aamir Bhatti; that he was not present on the date and time of incident and was at work. To support this contention, the learned counsel for the applicant relied upon a certificate dated 11-10-2010, issued by District Officer (Agriculture Extension), Larkano. That the pistol which was shown to be carried by the applicant at the time of incident was admittedly not used in the commission of offence and that the pistol was foisted by the police after showing it to be recovered from the graveyard at his pointation. In support of his contentions he relied upon the case of Shahid v. The State (1994 SCMR 393).
4. The learned counsel for the State resisted the bail application. It was argued that the applicant facilitated Aamir Bhatti in commission of murder of deceased Aijaz Ali and relied upon in such regard the case of Haji Punhal v. The State (PLD 2002 Karachi 99). The learned counsel for the State also argued that the provisions of section 34, P.P.C. Also attracted in the present case inasmuch as that it was an act done by all the accused persons in furtherance of common intention and therefore, each one of them is liable for the act of murder, as if such murder was committed by that person. To support his contention the learned counsel relied upon the case of Malik Sikander Awan and 2 others v. The State (1999 PCr.LJ 568). Combating the arguments of alibi as raised by the applicant, the learned State counsel argued that the plea of alibi cannot be evaluated at the bail stage and in such respect relied upon the case of Jan Muhammad v. Abdul Lauf and 3 others (2003 MLD 72).
5. Heard arguments, perused the record and the case-law, cited.
6. It is shown in the F.I.R., also borne out from the record that due to Mst. Guddi's divorce, her family members got perturbed. It seems that all the four accused, named in the F.I.R. Came to deceased Aijaz Ali with common intention to take his life and in order to achieve such common intention three accused (applicant being one of them), caught hold of him and the fourth accused namely Aamir Bhatti caused dagger blows on deceased with the result that he died on his way to hospital.
Thus, prima facie all the four accused came with common intention, i.e. IA to take life of Aijaz Ali, which indeed they took.
7. The record of the file would show that upon applicant's pointation unlicensed pistol was drawn from the graveyard. Applicant's contention that the pistol was foisted on him by the police under the circumstances of the case is farfetched. No enmity is attributed by the applicant against the police. Under the circumstances, in no way the B police could have foisted the unlicensed pistol on the applicant. As to the certificate submitted by the applicant to show that he was not available on the date and place of incident, it may be stated that such certificate is of no help to him. Bare perusal of certificate would show that on 22-8-2010, the applicant remained present on duty. The time of incident is shown as 2100 hours or thereabouts. Thus, it is clear that the incident took place around 9-00 p.m. In the night, by which time usually the duty time is over. Under the circumstances, the presence of applicant at the time of incident cannot be ruled out. The case of Shahid v. The State cited by the learned counsel for the applicant is of no assistance to him, 'inasmuch as in that case the honourable Supreme Court enlarged the accused therein by following the principle of consistency when it was shown that the co-accused of that F.I.R. Was released on bail.
8. As against this, the three cases cited by the learned State counsel are relevant inasmuch as that in the case of Malik Sikander Awan and 2 others v. The State, the bail was rejected by this Court on the ground that all the accused therein came to kill the person with common intention and killed that person. Similar is the position in the present case. Three, out of the four accused, including the applicant caught hold of deceased Aijaz Ali and the fourth accused with the help of other three accused managed to kill him. Such killing of Aijaz Ali was aided and facilitated by the applicant.
Similarly, in the case of Haji Punhal v. The State. Again this Court refused bail to the accused in that case by holding that where the co-accused had taken an active part in the crime, facilitated the co-accused to kill the deceased and therefore, the issue of vicarious liability at the bail granting stage would be decided against the co-accused and that the accused could be tentatively connected to the crime since he has prima facie facilitated the murder of the deceased and could be held vicariously liable for the crime. Coming to the case of Jan Muhammad v. The State, cited by the learned counsel for the State to combat the ground of alibi, it was held in such case that the plea of alibi taken by the accused could not be evaluated at the bail stage and therefore, the bail which was granted by the Court below in the case was cancelled by the High Court. It would be worth-mentioning here that the case of the applicant on the ground of alibi cannot be considered at this stage for two fold reasons. Firstly, because as already mentioned above that this is not the stage to consider the ground of alibi and secondly the ground of alibi was taken by the applicant too casually and without any substantiating evidence. The certificate produced by the applicant raises many questions and hardly a convincing piece of evidence inasmuch as that the certificate only shows that the applicant was present on his duty, "full time". By full time one could only come to the conclusion that the applicant attended his duties to the extent of his duty hours "which usually last from 9-00 'a.m. To 5-00 p.m. And thereafter, he came back home. Therefore, there was ample time for him from 5-00 p.m. Upto 9-00 p.m. To accompany the co-accused and commit murder in the company of the co-accused.
9. For these reasons, I do not find any merit in the present bail IF application and dismiss the same as such.