' In an occurrence that took place at "Khuftanwela" on 14-2-1993, in the area of village Dhoda, Police Station Dholan, District Chakwal, with regard to which a case under section 203/324/34, P.P.C. Was registered at mid-night (12-50 o'clock), one Azhar Khaliq was murdered, and Tahir Raza, his brother, was injured, allegedly at the hands of Abid Hussain and his brother Shafqat Hussain. Shafqat Hussain's bail petition was rejected on 24-6-1993 by learned Additional Sessions Judge, Chakwal, Malik Ghulam Hussain Awan. He has approached this Court with the same prayer.
2. Mst. Umbarin Kanwal, sister of Azhar Khaliq deceased and Tahir Raza P.W., was married with Abid Hussain accused, but the spouses could not pull on well, and she had sued her husband for dissolution of marriage, as also for recovery of dowry, in the Court of the Senior Civil Judge/Family Judge, Chakwal. In the Court premises a clash took place between the two sides. On reaching the village, after dinner, Azhar Khaliq and Tahir Raza, with their maternal-uncle, Fida Hussain complainant, and another person, Muhammad Sharif, proceeded for taking tea in a hotel. Abid Hussain, armed with gun, and Shafqat Hussain, wielding a wooden club, were sitting in ambush in a field. They emerged, raising Lalkara. Abid Hussain fired a shot at Azhar Khaliq, hitting him in the chest. He fell down and succumbed to the injury. Tahir Raza intervened and tried to save his brother, who was given a blow on his head by Shafqat Hussain accused.
3. According to the learned counsel for the complainant and the State, both the brothers had acted in concert and the fact that both of them were armed and were not empty-handed, coupled with the manner in which they conducted themselves, would indicate that the murderous assault had been made in a pre-planned manner, and both the brothers had shared the murderous intentions, and would thus be vicariously liable for the results of the assault, and Tahir Raza cannot claim exoneration, considered from any angle.
4. On the contrary it has been urged by the learned counsel for the petitioner that Mst. Ambrin's suit having been dismissed, her brothers, Azhar Khaliq and Tahir Raza, had a cause of grouse against her husband, Abid Hussain accused. It is however, to be realized that even Abid Hussain was expected to have been annoyed over the attitude of his wife's brothers, who were not allowing her, according to his assessm ent, to live with him. He had however achieved success in the litigation very recently, on the same day, and it was not likely that he would have entertained a cause of offence against his wife and her brothers, in an extreme measure, although after passage of some time, he could have developed bitterness against Azhar Khaliq and Tahir Raza, or other family members, in regard to the negative interest which they might have evinced in the matter of reunion of the spouses. It appears that suddenly when members of the opposing factions got confronted with each other, the bitterness or the ill-will that already existed, registered an abrupt rise, and they lost their tempers. It has however not been possible for the learned counsel for the accused to furnish an explanation for the conduct which Abid Hussain accused displayed, inasmuch as he was then equipped with a .12 bore gun, which without any appreciable amount of irritation or instigation, he made use of in fatally hitting right in the chest of his wife's brother, Azhar Khaliq. The mere fact that he did not repeat the injury would not make the assault accidental or casual in character.
5. The learned counsel for Shafqat Hussain accused however, urges that he was innocent and had not taken any practical part in the occurrence. It is pointed out that if at all Tahir Raza was hit at his hands, he did not repeat the injury. The weapon which he was allegedly equipped with would also show that he had no real intentions to cause material harm to anyone. The injuries on the person of Tahir Raza P.W. Were of simple nature. Although, according to the F.I.R., Shafqat Hussain had landed a single blow on the person of Tahir Raza, he, in actual practice, had sustained three injuries; and even if he had made a supplementary statement, giving an explanation for the other two injuries on his person, that must be taken td be in the nature of an afterthought, an effort made to overcome the difficulty which the complainant/prosecution was confronted with, on that score.
Abid Hussain accused also had received an injury and the same does not find mention in the F.I.R.
These omissions/errors in the F.I.R. Would make the complainant's version to be somewhat doubtful, rendering the prosecution case as one of further inquiry, to certain extent, in so far as role of Shafqat Hussain accused in the occurrence is concerned. It remains to be determined, if Shafqat Hussain accused, having no immediate grievance and no direct motive for making the assault, had in actual practice, shared the murderous intention of his brother, Abid Hussain accused, and had joined hands with him in eliminating Azhar Khaliq (deceased), whom he did not cause any injury. These being the facts and circumstances, and the applicant-accused, having suffered detention for quite a few months, incident having occurred on 15-2-1993, seems not to be disentitled to the concession of bail, even though he has involvement in a murder case. Plea of lack of vicarious liability invoked by an accused may be examined even at the bail stage. If in trial the prosecution succeeds in fastening the guilt on the B applicant, he too would earn conviction, for commission of an offence, nothing short of his real role played by him in the occurrence. For the present, as already said, he appears to be entitled to the concession of bail. He shall be enlarged, on his furnishirig a bail bond in the amount of Rs,50,000 with one C surety in the like amount, to the satisfaction of the A.C./Duty Magistrate, Chakwal.