1. Having failed to get bail in the Sessions Court, the petitioner Faryad has approached this Court for the same purpose. He is one of the four accused who have been placed on trial for murder of Inayatullah. The murder was committed on 6th November, 1981 at 3 p. m. And it was witnessed by complainant Moula Bux and Elabi Bux. Beside Mukhtiar Ahmed. It is alleged that while Moula Bux and Elahi Bux were standing in front of the Mujahid Hotel, they saw the accused rushing into the `autak' of the deceased. Accused Mahboob was armed with revolver, Muneer had dagger, Anwar Ali had a lathi and the petitioner Faryad carried a wooden plank. The deceased was allegedly attacked by alt the four accused but the injuries found on his person were incised wounds caused with sharp weapon excepting one contusion which was probably the result of a blow by some blunt substance. P. W. Mukhtiar who happened to be present at the 'autaq' also suffered injuries at the hands of the petitioner which were simple in nature. It is further alleged that the deceased had faced the accused with a 'soti', yet none from the accused side was injured. The motive attributed to the accused is that there had been a quarrel between the parties on the previous day of the incident. The F. I. R. Was lodged on the same day at 3.30 p. m. At police Station `A' Section Sukkur, situating only three furlongs away from the wardat. The deceased breathed his last on the way when he was being taken for treatment to the hospital.
2. Mr. Shamsuddin Shah, learned counsel for the petitioner, submitted that none of the injuries found on the person of the deceased was attribu--ted to the petitioner who is said to have caused only simple injuries to P. W. Mukhtiar Ahmed. He was, therefore, entitled to bail. In support he relied upon Muhammad Akbar v. State (1981 SCMR 771) and Sultan Ahmad v. State (1978 SCMR 7). In the first case it was held :- "The perusal of the F. I. R. However, reveals that Fateh Khan son of Ghazi and Ahmed Nawaz son of Shahnawaz petitioners are not alleged to have inflicted any injury on the deceased Ghulam Rasul but are alleged to have caused simple injuries to the complainant (Ghulam Qadir). Their case, therefore, appears to stand on a different footing. This aspect of the matter has been overlooked by the learned Judge in the High Court. The learned counsel for the petitioners cited the case of Mahla v. State 1976 P Cr. L J 1059 which support the contention that the person who had not caused injuries to the deceased cannot prima facie, be held to have committed any offence punishable with death or imprisonment for life.
3. In the second case of Sultan Ahmad v. State their Lordships of the Supreme Court allowed bail on the similar ground that the deceased was killed by fire, arm injury not attributed to the accused seek--ing bail.
4. It was further argued by Mr. Shamsuddin Shah that the petitioner could not be linked with the commission of the major offence even by constructive possibility because he did not share the common intention with other co-accused to cause death of Inayatullah, and moreover it was too early to hold him vicariously liable. To support his view point he relied upon 1978 SCMR 146. The relevant portion of the judgment delivered in the case is to the following effect :- "On these allegations in the F. I. 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 record--ed in the case, it is yet too early to hold Idrees respondent vicariously liable. He is merely attributed to have inflicted some of the simple injuries found on the person of Khadim Hussain com--plainant. In this view of the matter vie find that the respondent was entitled to bail."
5. On the other hand Mr. Sharfuddin Ada, learned counsel for the State and Mr. Shaikh Ayaz representing the complainant opposed the bail application with all vehements that they could muster up. Their chief contention was that in view of the prosecution allegations, it was quite clear that all the accused including the petitioner had common intention to kill the deceased and consequently the petitioner even though not directly responsible for the fatal blows could not escape the vicarious liability. They further argued that the Court could go into the question of vicarious liability even at bail stage. The authorities cited by them in support of their arguments are PLD 1978 SC 236, 1979 SCMR 92 and 1981 SCMR 1092.
6. It goes without saying that the fatal injuries were not caused by the petitioner. The next question that follows for consideration is whether the point relating to the vicarious liability (i. e. Liability for the injuries caused by the other accused) could be examined at the bail stage and if so, whether the petitioner is vicariously liable for the murder of Inayatullah. These points come up for consider4tion in the case of Nazar Muhammad v. State (PLD 1978 SC.236Their Lordships of the Supreme Court were pleased to observe :-- "There are other provisions such as sections 34, 109 and 120-B, of the Penal Code which envisage the rule of the constructive liability. The Courts, on the basis of the material placed before them, such as F. I. R. Statements recorded under section 161, Cr. P. C., are fully justified, even at the bail stage, to go into the question whether a case of a constructive liability is made out."
7. The tentative determination of the constructive liability for the purpose of disposal of the bail application was, however, subjected by their Lordships to the rule of caution as laid down in the case of Manzoor v. State (PLD 1972 SC 81which reads as under :- "It is obviously not correct to depend on the ipse dixit of the Police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeteadly held by this Court, bail in non-bailable case is a matter within the discretion of the Courts which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punish--able with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds and Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the Police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circum-- stances sorrounding the occurrence."
8. Again in the case of Muhammad Rasheed v. State (1979 SCMR 92) the dictum laid down in the Nazar Muhammad's case referred to above was reiterated in the following terms : "The decision in the above referred case (i. e. Muhammad Akbar v. State 1978 SCMR 7) has been clarified by this Court in Nazar Muhammad v. State PLD 1978 SC 236) wherein it was held that the Courts on the basis of material placed before them, such as the F. I. R. And the statements recorded by the Police were justified even at bail stage to go into the question whether the case of constructive liability was made out, subject, of course, to the rule of caution laid down in Manzoor v.
9. State (PLD 1972 SC 81)."
10. In view of above, the argument that the question of vicarious liability of the petitioner cannot be agitated at the bail stage is not correct. It is obviously permissible to look into the material made available to the Court in the shape of the F. I. R. The statements recorded by Police under section 161, Cr. P. C. And as such other documents which enable the Court to reach the conclusions necessary for disposal of the bail applica--tion. The question of vicarious liability was considered by the Supreme Court in the recent case reported as 1981 SCMR 1092 wherein the position in some of the cases referred to above was clarified. Their Lord--ships of the Supreme Court were pleased to observe :- " We are in respectful agreement with the observations reproduced above and consider that it is entirely erroneous to think that in the case of Muhammad Akbar 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 basis of the facts of each case, available on the record at the time the question of bail comes up for consideration. If on the allegation appearing on the record the considerations set out in provisions of law spelling out constructive liability are made out then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life."
11. In the light of the above authority which clinches the points under consideration, even if the petitioner was not responsible for any of the fatal injuries caused to the deceased, he could still be fastened with vica--rious liability, if there is material to show that be shared common intention with other co-accused to kill the deceased. Now it has got to be ascertained if in the present case the petitioner shared the common inten--tion to murder the deceased. The intention is to be inferred from the circumstances of the case including of course the motive for committing the murder. The learned counsel for the petitioner was correct in pointing out that motive is too vague. All that is said about motive is that there bad been a quarrel between the parties on the previous day of the incident. This hardly provides any clue as to the intention of the accused. It is further said that one of the accused was armed with a revolver, but there was no fire-arm injury on the person of the deceased. If the intention bad been to kill the deceased, the revolver would have surely been used to shoot the deceased dead. The fact that it is not used prima facie indicates as if the accused did not intend to bring about the death of the deceased. B They did not appear to have acted in concert with one another. Consequently they cannot be held liable for acts of the co-accused.
12. For above reasons, I agree with the learned counsel for the petitioner, that this accused did not have common intention to kill deceased and in any case the petitioner did not share such intention, if any. He will there--fore, be liable only for the simple injuries that he bad inflicted on the person of Mukhtiar Ahmad. Accordingly the petitioner Faryad is allowed bail on furnishing surety in the sum of Rs. 25,000 and P. R. In the like amount to the satisfaction of Additional Registrar of this Court.