1. ' The applicants are facing trial under sections 302/34, P. P. C. And 13-D, Arms Ordinance for having committed the murder of one Shah Nawaz on 18-64976. They were refused bail by the Sessions Judge, Khairpur by his order dated 11-10-1976 and have now applied to this Court for grant of same.
2. ' The case has not yet proceeded and the documents on which reliance is placed are the First Information report filed by Mohammad Nawaz an eye-witness of the incident and brother of the deceased Shah Nawaa, besides the post-mortem report prepared by the Medical Officer. As stated in the First Report this crime was committed at about sunset time when the complainant, his brother deceased Shah Nawaz, his cousin Inayatullah and Mohammad Saeed were sitting in the courtyard of their house on cots. The women-folk had gone to see an ailing relation. As deceased Shah Islawaz was leaving the house to go over to the otak, but was still in the courtyard, the three applicants gave a challenge of murder from the roof of the house of Karim Etux Sial, their father.
3. This house was situated by the side of the road towards the south of the house of the deceased.
4. The eye-witnesses saw that the applicants Ghulam Qadir and Azizullah were armed with guns while applicant Ghulam Nabi had a revolver. The challenge was "You will die today. We shall not leave you without murdering." Applicants Ghulam Qadir and Azizullah fired their guns which both struck Shah Nawaz who fell down. The witnesses got down from the cots and took shelter underneath. They raised cries of murder. Applicant Ghulam Nabi continued to fire with his revolver.
5. The applicants then left the roof and went down where after witnesses saw that Shah Nawaz had gone unconscious. Some other persons came up who were also informed and in the presence of all Shah Nawaz died. The motive for this crime as stated in the first report was that the complainant had accused the applicants as thieves of his cattle in the first report that he had filed 5-6 months prior to the incident. Since that time the applicants were angry and had been threatening the complainant and his brothers that they would someday murder one or the other of them.
6. ' The Sessions Judge had refused bail as the names of the three applicants were given in the first report and active part in the commission of the offence of murder had been assigned to them and that they fired guns and revolver at the complainant and witnesses. Mr. Mohammad Hayat June contended firstly that it was not possible to believe the story as given in the F. I. R. In the light of the opinion of the edical Officer. The distance from where the fire-arms were used was only 30-35 feet in the opinion of the Medical Officer. Therefore it was not possible to believe that the applicants fired from the roof of the house and that the crime could easily be constructed to be the act of one man. Moreover in his submission there was no immediate cause for the commission of the offence by the applicants. Now it is too premature a stage to examine these aspects of the case as they touch the merits of the matter. The learned counsel when confronted with this situation made an alternative submission and attempted to distinguish the case of applicant Ghulam Nabi from that of the other two applicants and consequently pressed for his bail alone. He submitted that no overt act had been attributed to the applicant Ghulam Nabi as according to the F. I. R. Deceased was injured on account of ten firing of gun by Ghulam Qadir and Azizullah. Even in the opinion of the Medical Officer the injuries were caused by the discharge of a fire-arm (shot-gun) and all the injuries were the result of two separate shots.
7. ' Therefore the contention was that although Ghulam Nabi was stated to continue firing with his revolver he had not caused any injury to the deceased.
8. ' The learned counsel referred to the case of Abdul Rehman and another v. State (Criminal Bail Application No, 264 of 1975) and Wahid Dino and others v. State (Criminal Bail Application No, 496 of 1975) to support his arguments. He also referred to the case of Allah Dino v. State (1) a case decided by me in which I had relied upon the above two cited cases. According to the learned counsel all these cases support his contention so far as applicant Ghulam Nabi is concerned.
9. ' I have examined the facts of the case in the light of the submission of the learned counsel. The facts of the present case are entirely different as the three applicants who are brothers are alleged to have gone over to the
(1) PLD 1976 Kar. 1202 ' roof of their house fully armed with fire-arms. They have actually used these arms. Before firing, as the allegation in the F. L R. Goes, they are said to have challenged the complainant party and threatened to murder.
10. ' There is a background of as the three applicants are said to have been accused of theft in a case registered with the police. It is also said that after that case they have been continuously giving threats to then complainant and his brothers. In such a situation the fact of firing from top of their roof cannot be understood to be with any other intention than of committing of murder. This cannot be a case as the learned counsel contends, where the common intention can be said to be a matter of mere inference. In the case Allah Dino v. State the assailants had gone over to the house of the deceased when one was armed with a gun and the other with a hatchet. The motive was said to be that of obtaining divorce for the wife of the deceased who was sister of one of the assailants. Deceased had died of gunshot injuries while the absence of any hatchet injury on his person indicated that the other assailant had not used hie weapon. The question whether the accused with the hatchet shared the common intention of committing the murder was therefore clearly a matter to be judged from the circumstances of the case. An inference of common intention in such circumstances could only be drawn after the same was found to be a necessary inference as enunciated by the Privy Council in the case of Mahboob Shah v. Emperor (1).
11. ' It has been observed in this case "the inference of common intention within the meaning of the term in section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case"
12. The present is certainly not a case of that type, for the circumstances are entirely different and if motive can indicate the intention of the accused in a particular case this certainly is one. The argument that applicant Ghulam Nabi at least has caused no harm and therefore should be given the benefit of bail also does not appeal to reason. The question about deduction relating to sharing of a common intention to commit a crime 1> in the circumstances of case is not dependent upon the quantum of harm done by a particular person. In fact, once that inference can become possible, the consideration of actual harm done becomes a totally irrelevant factor.
13. ' As stated by me in the case Allah Dino v. State, the two unreported cases also proceeded on the assumption that there was no evidence of common-intention and it has been observed "therefore, as there is no evidence as yet of a design or of a common intention under section 34, P. P. C. I would allow him bail on the same terms but it would be open to the prosecution to apply for cancellation of bail if the evidence warrants." The present cannot be described as a case of no evidence of common intention under section 34, P. P. C. And the principle laid down in these two cases would not be applicable.
14. ' In view of above circumstances, bail cannot be granted to the applicants, and this application is dismissed.