' ROOH-UL-AMIN KHAN, J.---Being unsuccessful before the two Courts below to get the relief of bail, the accused-petitioner by way of the instant application seeks the same relief from this Court in case F.I.R. No,108, dated 15-3-2013, registered under sections 302/324/34, P.P.C. At Police Station Banda Daud Shah District Karak.
2. The prosecution case as unfolded in the F.I.R. Is that on 15-3-2013, Abdul Latif Khan, S.H.O. On receipt of information regarding the incident, shifting of an injured as well as dead body of deceased Gul Nawaz to Civil Hospital Banda Daud Shah, rushed there were he found Haq Nawaz in injured condition in company of dead body of Gul Nawaz, who repotted him that on the eventful day he along with Gul Nawaz was proceeding to village "Sri Khwa" from village Banda Daud Shah via motorcycle bearing Registration No,8300.F Bannu. The moment, they reached "Taraki Ghosha Narri Panoos road", in the meantime, Saeed ur Rehman and Alam Zar Khan, already ambushed, emerged there and started firing at thenk with intention to commit their 'Qatl-e-Amd'. As a result of firing of accused Saeed ur Rehman, Gul Nawaz was hit and died on the spot while with the firing of accused Alam Zar, he sustained injury. The occurrence is stated to have witnessed by Hamid Khan and Shahid Nawaz, who were following the complainant party on their motorbike. Motive for the occurrence, as stated by complainant, is previous blood feud inter se the accused and deceased Gul Nawaz. He charged the accused for the commission of offence. Report of the complainant was reduced into writing in the shape of murasila, on the basis of which F.I.R. Mentioned above has been registered.
3. Learned counsel for the accused-petitioner before touching the merits of the case, referred to a coy of an application submitted by complainant-injured before the learned Additional Sessions Judge, Banda Daud Shah for recording his statement wherein he has totally denied registration of present F.I.R. On his report and his signature over the same. He has also denied the presence of the accused-petitioner and the eye-witnesses named above on the spot at the time of occurrence.
Learned counsel argued that initially the complainant was not charging the accused-petitioner but later on, he while taking somersault came forward with another version, which creates vacuum for further inquiry in the present case; he also referred to another affidavit filed by the complainant before S.P. Investigation, wherein the same stance has been taken by the complainant. On merits, the :earned counsel argued that the fatal shot on the deceased has not been attributed to the accused-petitioner rather the same has been assigned to co-accused Saeed ur Rehman; that the accused-petitioner is charged only for ineffective firing at the deceased and effective firing at the complainant but there is no allegation of repetition of fire against him to show his intention to commit the Qatl-e-Amd of the deceased or the complainant as both were allegedly on his mercy at the time of incident and that too in a hilly area; hence, application of section 324, P.P.C. Is yet to be determined by the trial Court after recording evidence; that the vicarious liability of the accused-petitioner at this stage cannot be determined which too is sole domain of the trial Court; that a tentative assessm ent of the record, reasonable grounds exist which makes the case of the accused-petitioner arguable for the purpose of bail hence, he is liable to be released on bail.
4. Conversely, learned counsel for the complainant vehemently opposed the contentions of the learned counsel for the petitioner and argued that accused-petitioner along with his co-accused, who is still absconding, has directly been charged in a promptly lodged report for the brutal murder of the deceased Haq Nawaz and attempting at the life of the complainant by firing at him effectively; that it is a daylight occurrence and the parties were well-known to each other, prior to the incident, hence, the question of mistaken identity does not arise; that 4 crime empties of .12 bore have been recovered from the place allotted to the accused-petitioner which clearly indicates his intention that how he has dealt the complainant and the deceased; that the factum of presence of the accused-petitioner along with absconding co-accused duly armed with deadly weapons, waiting the deceased and complainant at the place of incident and then resorting to firing, are the circumstances which prima facie are sufficient to be taken into consideration for determining that both the accused had committed the offence in furtherance of their common intention, as such the accused-petitioner is responsible for the act committed, that various recoveries from the spot by the Investigating Officer and Medico-legal Report of the injured as well as autopsy of the deceased further supplement the version of the prosecution; that ample incriminating material has been gathered by the Investigating Agency, connecting the accused- petitioner with the commission of offence entailing capital punishment falling within the Restrictive Clause of section 497, Cr.P.C. In respect of the alleged affidavits of the complainant, learned counsel argued that such affidavits have no evidentiary value at bail stage because the F.I.R. Is very much evident that complainant has charged both the accused directly at the first instance.
He sought dismissal of the application in hand.
5. I have heard the exhaustive arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
6. Perusal of the F.I.R. Depicts that accused-petitioner along with absconding co-accused Saeed ur Rehman has been directly charged for the commission of offence in a daylight occurrence which has been reported with promptitude i,e, within 25 minutes by the complainant himself who is having the stamp of injuries on his person. The promptitude report and factum of knowing each other well by the parties before the occurrence, totally eliminates the possibility of consultation, deliberation, substitution, manipulation or false implication of the accused on the part of the complainant. The version of the complainant is fully supported by Hamid Khan and Shahid Nawaz, the eye-witnesses of the incident who have been examined by I.O. Under section 161, Ct.P.C. During spot inspection, blood-stained earth from place of the deceased and 125-Honda Motorbike No,F- 8300 Bannu having pellets marks have been taken into possession by the Investigating Officer.
From the place of the accused-petitioner 04 crime empties of .12 bore have also been recovered and taken into possession, giving fresh smell of discharge. Blood-stained earth from the place of injured complainant, the last worn blood-stained garments of the deceased and that of the injured sent by the doctor have been secured through recovery memo in presence of witnesses. Report of the F.S.L. Qua the blood-stained articles sent there, is in positive which corroborates the version of the prosecution. Similarly, the recovered crime empties from the place of the present petitioner and that of his co-accused have been sent to the FSL for opinion, according to report, these have been fired from different .12 bore weapons. On tentative assessment of the record and taking into consideration all these pieces of evidence, reasonable grounds exist which prima facie connect the accused-petitioner with the commission of offence entailing capital punishment falling within the Prohibitory Clause of section 497, Cr.P.C.
7. The arguments of the learned counsel for the accused-petitioner that fatal shot has not been attributed to the accused-petitioner rather he is only charged for causing simple injury on the person of the complainant therefore, his case would not fall under section 324, P.P.C. And that the vicarious vicarious liability of the accused-petitioner at this stage could not be determined without recording evidence, has no force, because, the paramount consideration while deciding bail applications in offences under section 34, P.P.C. Or 149, P.P.C. Is the B determination that as to whether the accused was a member of an unlawful assembly and whether the offence has been committed in furtherance of common intention. If the accused appeared to be knowing that the offence shall be committed in furtherance of common object of the unlawful assembly, then every member of the said assembly shall be responsible for the act committed by anyone of them and if the offence committed falls within the Prohibitory Clause of section 497, Cr.P.C. The bail shall be refused to each of them. For convenience, section 34, P.P.C. Is reproduced below:- "Act done by several persons in furtherance of common intention.-- When a criminal act is done by several persons, in furtherance of the common intention of all, each of such person is liable for that act in the same manner as it were done by him alone."
' The bare reading of the section divulges that the main ingredients of section 34, P.P.C. Are that a criminal act must be done by several persons; that criminal acts must be done in furtherance of common intention of all and that there must be participation of all persons in furthering the common intention. Common intention generally involves element of common motive, preplan preparation and actual pursuant to such plan. Some times common intention is developed at the spur of the moment or during commission of offence. Section 34, P.P.C. Is applicable to sharing of knowledge as well as intention. Intention is a mental condition and is to be determined from the facts and surrounding circumstances of the case. Direct evidence in this respect cannot be expected in each case and in order to determine the common intention regard must be given to all the acts done by the accused. The Court on the basis of material placed,' such as F.I.R. And statements recorded by the police, even at bail stage,, could consider the question whether the case of constructive liability was ,made out or not. Needles to say that the principle to this effect has been settled by the august Supreme Court in case titled, "Baboo v. The State" (1981 SCM R 849).
As regards in the instant case, sufficient material is available on file, i,e, presence of the accused- petitioner along with his co-accused at the crime scene duly armed with fire-arras, waiting the complainant and deceased and then resorting to firing at them. Besides recovery of other crimes empties of .12 bore, 4 crimes empties of ,12 bore weapon have also been recovered from the place of the accused-petitioner, which shows his intention that how he has dealt with the complainant party at the time of incident, thus, in the circumstances, he cannot get the premium of single injury on the person of the complainant because it was the Almighty Allah who save the life of the complainant otherwise, the peculiar facts and circumstances of the case show that the accused had left no stone to do them away. Accused is the only person having direct motive with the decea,sed and all these are material circumstances which prima facie connect the accused- petitioner with the vicarious liability of sharing common intention with absconding co-accused that the offence has been committed in furtherance of their common intention and in such-like circumstances each one of them shall be responsible for the act committed. In this regard guidance may be taken from principles laid down 'by the apex Court in case titled "Ghulam Nabi v.
The State" (1996 SCM R 1013 and case titled. "Nazar Muhammad v. The State and another" (PLD 1978 SC 236). It would also be immaterial to say that whether he has been attributed the fatal shot or otherwise.
8. The arguments of the learned counsel for the accused-petitioner about non-applicability of section 324, P.P.C. Keeping in view the single injury on the person of the complainant, is also misconceived, in light of spirit of section 324, P.P.C. Which for convenience is reproduced below:--- ' "S.324 Attempt to commit Qatl-eAmd.---Whoever does any act with such intention or knowledge and under such circumstances, that, if he by that act cause qatl, he would be guilty of qatl-e-amd, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than five years, if the offence has been committed in the name or on the pretext of honour, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offence shall in addition to the imprisonment and fine as aforesaid, be liable to the punishment provided for the hurt caused."
' The bare reading of the section ibid manifest that it consists of two parts i,e, commission of an act with intention or knowledge to commit Qatl-e-Amd and in the second part that is effect of the act done. So where the intention of accused qua commission of an act is evident, the provisions of section 324, P.P.C. Would at once be applicable and the second part is the effect for which the offender would be liable to punishment in addition to the hurt caused. In the instant case, recovery of 4 crime empties very much establish the intention and knowledge of the accused-petitioner qua commission of his act.
9. As regards the argument of the learned counsel for the accused-petitioner qua filing of affidavit by the complainant regarding non-presence of the accused petitioner at the spot affidavit submitted by the complainant is of 'no consequence during bail stage and cannot be given the status of evidence. The affidavits were neither statement under section 161 nor 164, Cr.P.C.
10. There are only thee sections in the Code of Criminal Procedure i,e, sections 74, 526 and 539-A, according to which a fact may be got proved by affidavit, otherwise any affidavit submitted would not be treated as legal evidence. A Court at the time of hearing of bail application is supposed to do tentative assessm ent of the material available on the record. Trend that eye-witnesses take a somersault and give statements which are different from prosecution case and file affidavits at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable accused to get the bail is deprecated by Supreme Court with the observation that Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. Mind of the Court has to be satisfied where about- turn of some of the eye-witnesses in such a manner shakes up the whole prosecution case from the point of view of credibility of the remaining material. Each case, in such a situation has to be decided on its own merits. Reliance may be placed on case titled, "Naseer Ahmad v. The State (PLD 1997 SC 347). In the case of Mst. Basheran Bibi v. Nisar Ahmad Khan (PLD 1990 SC 83), the honourable Supreme Court ruled that mere filing of affidavit would not attract the expression "further inquiry" nor it would amount to two versions. In suchlike cases, evidence value of such evidence should be left to be determined by the trial Court.
11. Bail in non-bailable offence has always been considered by the Courts where case for bail is made out. While considering the bail matter of an accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail, unless case is covered by any of the provisions in subsection (1) of section 497, Cr.P.C. Bail in cases of commission of non-bailable offences and particularly falling in the Prohibitory Clause of section 497(1), Cr.P.C. Is not be granted as a natter of course with a simple sentence that it is a case of further inquiry, without keeping in view the entire provisions of section 497, Cr.P.C. If bail is to be granted to every accused even if, charged with a non-bailable offence, without considering the merits of the case, merely on the plea that every accused is presumed to be innocent unless proved otherwise, the very concept and purpose of drawing a line between bailable and non-bailable offences and various kinds of punishments, as prescribed by the law, shall stand frustrated. The discretion vested in the Court, is to be exerciged in a judicial fashion, in the light of the facts of each case. Where the prosecution collects enough material to constitute reasonable ground connecting the accused with the alleged offence. Courts are always slow to accede to the request for bail.
12. For what has been discussed above, the accused-petitioner has failed to make out a case of bail. Resultantly, his application stands dismissed.