1. ANWARUL HAQ, C. J.-The petitioner Munawar is aggrieved by the refusal of the Lahore High Court, by its order dated the 6th of October 1978, to allow him bail in a case registered against him and three others under sections 302/307 and 326 of the Pakistan Penal Code, read with section 34 thereof, for causing the death of one Ahm;d and fire-arm injuries to the first informant Sadiq.
2. The incident is said to have taken place on the 30th of January, 1978 at 5-30 p. m. And was reported at Police Station, Saddar Burewala in Vebari District at 1.0 p. m. The same night. All the four accused were named therein, and it was stated that the petitioner, as well as two others, were carrying pistols whereas the fourth one was carrying a Danda. It seems that later on even the fourth accused was credited with a '12 bore pistol, and on account of this discrepancy he has been allowed bail, whereas the remaining three accused have been refused this concession. The learned Judge of the High Court has observed that the present petitioner and his companions were armed with pistols and specific overt acts have been attributed to them, and, therefore, there was no ground for grant of bail.
3. It is submitted by Dr. Khalid Ranjha. The learned counsel for the petitioner, that the prosecution case is belied by the fact that the injuries said to have been caused to the first informant by the present petitioner have been found, on medical examination, to be pellet injuries, thus showing that they could not have been caused by a pistol. He next submits that, in any case, the petitioner is not alleged to have caused any injury to the deceased, and, therefore, he could not be said to have shared any common intention with the other three persons to cause the death of the deceased.
4. The learned counsel contends that in these circumstances the view taken by this Court is that bail ought to be allowed to such an accused who has not caused any injury to the deceased. In support of this last submission Dr. Khalid Ranjha has placed reliance on Muham)Md Akbar and 4 others v. The State and others (1978 SCMR) and Khadim Hussain v. The &ate and another (1978 SCMR 146).
5. On behalf of the complainant Mr. Hassan Ahmad Kanwar submits that the present petitioner has been consistently attributed a pistol, and that one of the empties has matched with the weapon recovered at his instance, thus showing that the pistol used by him was of '-bore, and could cause pellet injuries. He next contends that there is n universal rule of law that a person who has not caused any injuries to the deceased cannot be burdened with common intention under section 34 of the Pakistan Penal Code or common object under section 149 of the same Code. In support of this contention he placed reliance on Nazar Muhammad v. The State and another (PV1978C236).
6. As to the alleged participation of the petitioner in the assault in question, it is sufficient to say that there is prima facie material to show that he did take part in the occurrence, as one of the empties has matched with the pistol recovered at his instance. Mr. Hassan Ahmad Kanwar seems to be right, in the circumstances, as it will be seen that the pistol used by the petitioner was apparently of '12 bore and that is why it caused only pellet injuries to the complainant.
7. On the question of his sharing a common intention with the other accused in causing the death of the deceased, it is true that in the case relied upon by Dr. Khalid Ranjha it was observed that the accused persons .Who were not alleged to have caused any injury to the deceased, but merely to the complainant, could not prima facie be held to have committed any offence punishable with death or imprisonment for life. That was a case where the Medical Officer, who had performed the autopsy of the deceased was unable to find any single injury which could have caused his death in the ordinary course of nature, and that death resulted from peritonitis which might have ensued as a collective result of the injuries, besides the fact that the deceased was also a case of chronic tuberculosis. It would appear, therefore, that even those accused who caused injuries to the deceased might not have any common intention of causing his death. In these circumstances it was, indeed, possible to take the view that the accused persons who had caused no injury at all to the accused could not prima facie be held s o have committed any offence punishable with death or imprisonment for life. It will be seen, therefore, that this case cannot be cited as an authority for the legal pro--position that accused persons who do not cause any injury to the deceased cannot be burdened with vicarious liability under section 34 or 149 of the Pakistan Penal Code. Such a statement would amount to a negation of these two provisions of law.
8. In the second case relied upon by Dr. Khalid Ranjha, the Position was again similar, as the learned Judges concluded on the facts of that case that "On these allegations in the F.1. R. It does not prima facie appear that the accused were sharing the common intention to cause the death of Ismail deceased and in the absence of any evidence recorded in the case, it is yet too early to hold Idrees respondentvicariously liable. He is merely attributed to have inflicted some of the simple injuries found on the person of Khadim Hussain complainant."
9. It appears to us that this case again proceeds on its own peculiar facts, and does not lay down any general proposition of law as to the vicarious liability of a person who does not cause any injury to the deceased, but merely to a complainant or any other prosecution witness.
10. The case of Muhammad Akbar and others v. The State -referred to above, was discussed and distinguished by this Court in Nazar Muhammad v. The State and another relied upon by the learned counsel for the complaint. It was observed in this case that: "We would like to clarify that in the case cited above Muhammad Akbar and others v. State, it was never intended to lay down as a rule of law that the Courts at bail stage should not even prima facie examine the question of constructive liability in the case where the accused is not attributed any injury to the deceased andalso 5 d to have caused injuries to the P. Ws. As defined in section 141,, p. C. As assembly of five or more persons is designated as an assembly if the common object of the persons composing it, inter is to commit any mischief or criminal trespass or other offence.
11. There are other provisions such as sections 34, 109 and 120-B of the Pskistan Penal Code which envisage the rule of constructive it. TheCourts, on the basis of the material placed before them, such F.
1. R., statements recorded undersection 161, Cr. P. C., i.e fully justified, even at the bail stage, to go into the question whether 8 11 case of constructive liability is made out."
12. Proceeding on these principles, the' Court reached the conclusion that the principle of vicarious liability was attracted to the case of the petitioner before it, and accordingly, leave to appeal was not granted.
13. We are in respectful agreement with the observations reproduced above and consider that it is entirely erroneous to think that in the case o Muhammad 4kbar and others this Court laid down any rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at the time of considering the question of bail. The question is essentially one which has to be determined on the A basis of the facts of each case, available on the record at the time the question of bait comes up for consideration. If on the allegation appearing on the record the conditions set out in she provisions of law spelling out constructive liability are made out, then it can not be said that the accused con--cerned is not guilty of an offence punishable with death or imprisonment for life.
14. Now, in the present case, it is alleged that the petitioner and his com--panions had come fully armed with deadly weapons, and that it was I pursuance of their common intention that one of them fired at the decease, whereas the shots fired by the present petitioner caused injuries to Sadiq e complainant. In these facts it is not possible to hold that the petitioner did not share any common intention with the accused whose shot actually hit the deceased. In the circumstances the learned Judge in the, High Court was right in thinking that the principle of vicarious liability was attracted to the petitioner.
15. The petition, accordingly, fails and is hereby dismissed.