' As per F.I.R. In Crime No,40/1992 of Police Station New Foujdari Shikarpur which was recorded at the instance of complainant Lashkar on 19-4-1992 under section 302, 504/34, P.P.C. And 13-D, Arms Ordinance, about 10 or 12 years ago Udhal Bhayo (the absconding accused) had received some fire-arm injuries in which the complainant Lashkar and his relatives were implicated. Now on 18-4- 1992 at 2300 hours complainant Lashkar was in his fields when four persons came there who were identified as Udhal, Udhal's brother Murad, Murad's son Sarwar and Udhal's son Wazir. Out of them Udhal and Sarwar are said to have been armed with guns, Wazir with hatchet and Murad with Lathi.
On being challenged, Udhal abused and declared his intention to take revenge and fired at the complainant and his companions and hit complainant's brother Behram who received gunshot injuries and eventually died. After firing at Behram, the accused persons went away. Out of the four accused persons named in the F.I.R., the main accused who is alleged to have fired, injured and killed Behram has not yet been apprehended. The rest of the accused were however, apprehended and have now applied for bail. Earlier learned Sessions Judge, Shikarpur had rejected their bail application on 7th June, 1992 on the ground of, amongst others, that they were vicariously liable for the act of the main accused even though they had not taken any part in the incident. The learned Sessions Judge also seems to have been impressed by the claim of the complainant, who was present before him during the hearing of the bail application, that these applicants had extended threats from the jail that they would kill, him if they came out of the jail. Learned counsel for the applicant, of the complainant and learned counsel for the State have all been heard.
2. As would appear from the F.I.R. Itself, these applicants, even though they were armed with gun, hatchet and Lathi did not use these weapons and did not take any part in the incident. They are only accused of being with the main accused Udhal. On the basis of these facts learned counsel for the applicants has relied on the judgments reported as Khadim Hussain v. The State 1978 SCMR 146; Muhammad Akbar and others v. The State 1978 SCMR 7; Ghulam All v. Muhammad Osaf and others 1987 SCMR 857; Bati Khan v. Gulzar and others 1988 SCMR 279; Sultan Ahmed v. The State 1981 SCMR 771; Dhani Bux and another v. The State 1990 P Cr. L J 1293 and Sohnoo v. The State 1990 P Cr. L J 779 whereas learned counsel for the complainant has relied on the judgment reported as Dhani Bux and others v. The State 1989 SCMR 239. The gist of the arguments of the learned counsel for the applicant is that when no overt act whatsoever has been attributed to the applicants, they are entitled to bail because their implication under sections 148, 149 and 34, P.P.C.
Can only be established after the evidence has been recorded. On the other hand, learned counsel for the complainant and learned AA.-G. Have argued that the names of the applicants appear in the F.I.R. And their very presence with the main accused shows the common intention of all the accused persons and in any case the applicants gave moral support to the main accused because if they had not been with him at the time of incident, he would perhaps have not dared to fire at the complainant.
3. In the above-noted first case 1978 SCMR 146 a number of accused persons are alleged to have attacked the complainant party and accused Idrees was said to have given Danda blows to Khadim Hussain of the complainant party whereas other accused were alleged to have given various blows to deceased Ismail. It was held that it was too early to hold accused Idrees to have been vicariously liable for the offence of murder because no evidence till then had been recorded and therefore, Khadim Hussain's petition for cancellation of bail of Idrees was rejected. In the second judgment 1978 SCMR 7 an accused person was not alleged to have inflicted any injury to the deceased but was alleged to have caused simple injuries to complainant. It was held that the case of such accused could be distinguished and stood on different footing that the case of those accused who had caused injuries to the person of the deceased. In the above-noted third judgment 1987 SCMR 857, the facts were that two co-accused were granted bail by the High Court in a case under section 302/34, P.P.C. And petitioner Ghulam Ali had approached the Supreme Court for the cancellation of the bail of the said two accused persons who were reported to have grappled with deceased Ghulam Abbas but the main accused Shingle asked them to move away whereupon they let go deceased Ghulam Abbas and moved away and then main accused Shingle fired at deceased Ghulam Abbas. It was thus clear that the two respondents who were granted bail by the High Court had taken part in the dispute at the earlier stage of the case but they did not do anything except fighting and grappling with the deceased whereafter they had let go the deceased and the fatal fire-arm shot was attributed to another accused. On the basis of these facts it was held by the Honourable Supreme Court that it was too early to hold that these two persons shared common intention with Shangil to murder the deceased and therefore, petition for cancellation of their bail was rejected. In the above-noted fourth judgment 1988 SCMR 279 those accused who were alleged to have fired ineffectively were also held to be entitled for bail.
Similarly, in the above-noted fifth judgment 1981 SCMR 771, the accused who was armed with fire- arms but to whom fire-arm injury upon the deceased was not attributed was granted bail. The above-noted sixth judgment 1990 P Cr. L J 1293 is in respect of practically similar case as the present one. It was also a case under section 302, P.P.C. In which some accused were allegedly armed with hatchets which were not used in the incident and no overt act or injury to the deceased was attributed to them and it was held that the case of those accused was distinguishable from the case of other co-accused against whom there were allegations of overt act and of causing injuries to the deceased and it was held that the determination of vicarious liability of the former category of accused persons required further enquiry and therefore, they were granted bail. It would appear from the summary of the above-noted judgments that the consensus of the opinion of the Honourable Supreme Court, and also of this Court, is that when no overt act is attributed to an accused and who is not alleged to have used his weapon, whether a gun or a hatchet or a Lathi, is entitled to bail because his mere presence alongwith the main accused is not per se a proof that he shared common intention with him to commit the offence. The judgment relied upon by the learned counsel for the complainant 1989 SCMR 239 can be distinguished inasmuch as in the reported case there was a prima facie evidence of the accused having acted in furtherance of the common intention of all of them whereas in the present case there is no such prima facie evidence available and the only evidence available is merely that of their presence with the main accused.
The only ground put forward by learned AA.-G. For the rejection of bail to the applicants is that the main accused Udhal is still absconder. It however does not appeal to me that the applicants, even though otherwise entitled to be released on bail, should be kept under detention merely because the main accused, even though he happens to be their close relative, is absconding.
4. For the above-noted reasons I am of the view that the applicants are entitled to bail and I would direct that they be released on furnishing one surety and P.R. Bond in the sum of Rs,50,000 each to the satisfaction of the Sessions Judge, Shikarpur.