' MUHAMMAD ALI MAZHAR, J.---The applicants have applied for post-arrest bail in Crime No, 153 of 2009 lodged at Police Station, Kandhra, District Sukkur under sections 302, 148, 149, 395, 396, P. P.C.
And sections 17/4 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Both the applicants had applied for bail in the trial Court but their application was dismissed vide Order dated 13-10-2010.
2. Succinctly, the facts of the case are that complainant Mushtaq Ahmed lodged F.I.R. On 16-11- 2009, in which, it was stated that yesterday on 15-11-2009, the complainant along with son-in-law Sada Hussain and his brother Fida Hussain had gone to village Shah Esso for attending the wedding ceremony. After attending the same in the night time, the complainant along with Fida Hussain was returning on Motorcycle while Sajid Ali and Sada Hussain were on another Motorcycle.
It was 10-pm when they reached at link road Kandhra leads to village Wah Burira near Sui Gas Line where they saw that three persons who were Abdul Kareem, Shahmir, Qayoom with Kalashnikovs while Ahmed, Nazar Hussain and Atta Muhammad were standing with guns. Accused Abdul Kareem, Ahmed and. Qayoom were standing on front side of the road while accused Shahmir, Nazar Hussain and Atta Muhammad were standing at the distance of 20 paces from them. Abdul Kareem signaled to Sajid Buriro, who was going ahead from the complainant and when he crossed accused Abdul Kareem, he with intention to commit murder made straight fire upon them, which hit the complainant's son-in-law Sada Hussain on his back while Shahmir made straight fire upon Sajid Ali. Both after receiving fire arm injuries fallen down from Motorcycle. Thereafter all the accused persons came over Sajid Ali and Sada Hussain and took out Mobile Phone and money from their pockets and after that they ran away towards southern side. The complainant saw in presence of witnesses that Sajid Ali had sustained fire arm injuries on his chest while son-in-law of thecomplainant had sustained fire arm injuries on his back with exit wound on his chest and both after sustaining the injuries died.
3. The learned counsel for the applicants argued that both .The applicants have been falsely implicated in the case without mentioning any specific role but only their presence has been shown with guns at the place of incident with general allegations of committing robbery of cash and Mobile Phone from the pockets of deceased. He further argued that there is a delay of one day in lodging of the F A.R., which has not been satisfactorily explained. The applicants are poor Haris and not previously convicted or involved in any case. He further argued that the role of present applicants, requires further inquiry. In support of his arguments he relied upon following case-law.
2002 MLD 1085 (Abbas v. The State). In this case it was held that accused having not been attributed any injury to deceased or to any injured person. It was a case of further enquiry to the extent of finding whether accused has shared common intention with co-accused or not. Accused had been shown as armed with fire arm but he did not use the same it was sufficient to hold that accused prima facie did not share common intention.
1996 SCMR 1654 (Muhammad Sadiq v. The State). In this case it was held that accused were alleged to have kept on firing and raising Lalkara at the time of occurrence. Although accused were armed with a pistol and a rifle, yet they did not cause any injury to the complainant party.
Allegation of Lalkara against the accused was proverbial. Accused were admitted to bail in circumstances.
2003 PCr.LJ 775 (Muhammad Qasim v. The State). In this case it was held that only role assigned to the accused was that he was armed with gun. No other overt act had been attributed to accused. Deceased constable had not received any fire-arm injuries. Vicarious liability of accused in the case was a matter of further inquiry entitling him to the concession of bail. Accused was admitted to bail in the circumstances.
2011 SCMR 902 (Manzoor Hussain v. The State). In this case, the honourable Supreme Court held 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.
PLD 1991 SC 923 (Muhammad Akbar v. The State). In this case, the honourable Supreme Court held that mere presence of an accused at the place of incident with a co-accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstance manifesting a common intention. Common intention, generally, inter alia, preceded by some or all elements namely, common motive, pre-planned preparation and concert pursuant to such plan. Common intention, however, may develop even on the spur of moment or during the commission of offence. Common intention, conversely may undergo change during the commission of offence. A joint action by a number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of section 34, P.P.C.
However, section 34, P.P.C. Contemplates an act in furtherance of common intention and not the common intention simpliciter and that there is a marked distinction between similar intention and common intention and between knowledge and common intention.
4. On the contrary, the learned counsel appearing for the complainant argued that the crime was committed by all the accused persons in a preplan manner and all shared common intention. All the accused persons were duly armed with weapons and they were present at the place of occurrence to commit the robbery and all the accused persons named in the F.I.R. Have jointly committed the crime and are equally responsible of committing the murder of two innocent persons with common intention, therefore, at this stage when specific allegations have been levelled against the applicants in the F.I.R., this is not a case of further inquiry, as reasonable grounds are available to believe that accused had shared common intention and in order to snatch the Mobile Phone and cash amount of persons, they had committed the murder of two persons. He further averred that so far as the question of sections 17/4 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, is concerned, specific allegation has been raised against, all the accused persons, who came over to the deceased persons and took out Mobile Phone and money from their pockets and thereafter ran away. In support of-his arguments he has relied upon the following case-law.
2011 MLD 1171 (Mulo Ahmed v. The State). This is my own order, in which, I have discussed in detail the concept of vicarious liability and the act done with common intention.
1981 SCMR 1092 (Munawar v. The State). In this case it was held that the petitioner and his companions had come 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 present petitioner caused injuries to a complainant in the circumstances it is not possible to hold that petitioner did not share any common intention with the accused whose shot actually hit the deceased.
5. Learned DPG for the State supported the arguments of the learned counsel for the complainant. However, he added that empties were recovered from the place of the incident and foot prints of six persons were found available at the place of wardat. He further invited the Court's attention to section 396, P.P.C., which relates to an offence of dacoity with murder and provides that if anyone of five or more persons who are conjointly committing the dacoity and commit murder in so committing dacoit, every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine. He, therefore, argued that in this case also the names of more than six persons are mentioned in the F.I.R. Who have committed the murder of two innocent persons and committed dacoity and therefore he has opposed the bail application vehemently.
6. This is the case of double murder in which two innocent persons have lost their lives in young age and they were brutally killed and the A offence do come within the prohibitory clause. The crux of the arguments of the learned counsel for the applicants is that since both the applicants were though present at the spot but they did not cause any injuries to the deceased persons and the allegations against them are general in nature. But on the contrary in the F.I.R. The complainant has unequivocally stated that Abdul Kareem and Shahmir made straight fires and committed the murder and the present applicants were also stated to be present at the place of occurrence at the distance of 20 paces and after committing murder all the accused persons came over the bodies of victims and took out Mobile Phone and cash from their pockets and then ran away. Therefore, at this stage there is no reasonable ground to believe that the present applicants had not shared their common intention with other accused persons. In my own order reported in 2011 MLD B 1171, I have discussed in detail that the vicarious liability can be looked into even at bail stage if from the F.I.R. The accused appear to have acted in pre-concert or shared the community of intention with co-accused who caused fatal injuries to the deceased can be saddled by constructive or vicarious liability by invoking section 34, P.P.C.
7. Section 34, P.P.C. Has laid down the principle of constructive liability. If several persons would unite with common purpose to do any criminal offence, all those who assist in the completion of their object, would be equally guilty. Foundation for constructive liability was the common intention in meeting accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence. In order to constitute an offence under section 34, P.P.C., it is not required that a person should necessarily perform any act with his C own hand. If several persons had the common intention of doing a particular criminal act and if, in furtherance of their common intention all of them join together and aided or abetted each other in the commission of an act, then one out of them could not actually with his own hand, do the act but if he helps by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of section 34, P.P.C. Paramount consideration is whether the accused was a member of an unlawful assembly or whether the offence is committed in furtherance of common object.
8. In the case in hand the allegation against the present applicants is that they have committed robbery/dacoity with co-accused persons and their presence on the spot, therefore, possibility of their preplan concert in furtherance of common object with other accused persons cannot be ruled out. No explanation whatsoever has been rendered to justify the presence of the applicants at the place of occurrence. Nothing is available on record to show that the complainant party had any motive or reason to falsely implicate the present applicants. All the case law referred to by the learned counsel for the applicants are distinguishable to the facts and circumstances of the case.
9. At present, there are no reasonable grounds to believe that the applicants are not guilty of an offence punishable with death or imprisonment for life. Consequently, this bail application is dismissed.
10. However, the trial Court is directed to conclude the trial within a period of three months. At this juncture, the learned counsel for the applicants relied upon the case-law reported in 1997 SCMR 436 (Ashok v. The State). In this case while dismissing the bail application this Court had directed the trial Court to procure the attendance of the Investigating Officer and if need be even issue coercive process against him and complete trial within a period of three months. Since the directions of this Court were not complied with, therefore, the honourable Supreme Court once again directed the trial Court to conclude the trial within a period of one month with further rider that in case trial is not concluded, the petitioner shall be deemed to have been granted bail in the case of expiry of one month period and will be enlarged on bail by the trial Court on furnishing one surety in the sum of Rs,100,000 with personal bond of similar amount. The fallback argument of learned counsel for the applicants was that in case bail application is dismissed, specific directions should be given to the trial Court to conclude the trial within a specified period failing which same treatment should be given to the applicants as given by the honourable Supreme Court (supra).
11. The above case-law is quite distinguishable at this stage where no earlier directions were given by this Court to the trial Court and the honourable Supreme Court passed the order in exceptional circumstances after holding that it is clear from the record that the petitioner is not responsible for the delay in the conclusion of the trial. In the present . Case, it is not possible to pass any bail order in advance and let the trial Court first attempt to conclude the trial within a period of three months. However, both the applicants will be entitled to move fresh bail applications on the ground of statutory delay/hardship keeping in view the amendment made under section 497 of the Criminal Procedure Code by virtue of the Code of Criminal Procedure (Amendment) Act 2011, if their case falls within the sphere of aforesaid amendment created to overcome and remedy the hardship cases and provide relief to the victims suffering from scandalous and unjustified delays in the trial of their cases which is against the principles of criminal administration of justice. Inordinate delay in imparting justice causes erosion of public confidence.