1. ' Applicants Abdul Waheed and Nadeem are charged with the commission of murder of Alidino which was reported to Police Station Baberlo on 5-1-1997 by Abdul Razak. In nutshell the facts of the case of the prosecution are that deceased Alidino had purchased some land on which Shamsuddin Kandhir was not happy and had been threatening the deceased of consequences. On the day of incident Abdul Razak and Alidino alongwith Rehmatullah, Muhammad Sumar and Sulleman were working in their garden when at about 7-30 a.m. Accused Abdul Karim, Abdul Waheed, Nadeem and Raheem all armed with guns came there and remonstrated with the complainant and his brother that in spite of their objection, they had purchased the land and that they should face the consequences. Thereafter, Abdul Karim started firing at the complainant party. Alidino started running towards road to save himself. However, when he had covered 50/60 paces Abdul Karim following him hit him with the gun fire. Alidino fell on the road. Accused Nadeem, Raheem and Abdul Waheed fired directly aiming at the complainant and deceased and after Alidino fell down they still fired in the air and then went away. Alidino died as a result of fire- arm injury hitting on his head. Abdul Razak leaving others to guard the dead body reached the police station and registered the case. The police after investigation arrested Abdul Karim, Abdul Waheed, Nadeem while accused Raheem absconded. Present applicants Abdul Waheed and Nadeem having failed to get the bail from the trial Court have approached this Court.
2. ' Learned counsel for the applicants and for the State were heard in detail.
3. ' The main contention of the learned counsel for the applicants was that since the applicants are not charged with causing any fatal injuries to the deceased the case against them required further inquiry and, therefore, they are entitled to bail. Learned counsel for the State, however, opposed and contended that the applicants are vicariously liable for death of Alidino.
4. ' On going through the record of the case as well as considering 'the arguments of the learned counsel I find that the applicants have been implicated by the complainant and the eye-witnesses of the case who stated that after having approached the deceased and the complainant, they fired towards them. They were duly armed with lethal weapons. They had motive to commit the murder as both the applicants are sons of Shamsuddin who had objected to the purchase of the land by the deceased and issued threats of dire consequences to him. The learned counsel for applicants stated that although Shamsuddin was initially arrested by the police but, thereafter he was let off during investigation, it is not a sufficient ground for believing that the applicants had no common intention.
5. ' The most important point for considering the entitlement of the applicants to be released on bail in this case is the consideration whether:--
(i) There are no reasonable grounds for believing that the accused had committed a non-bailable offence,
(ii) Whether there are sufficient grounds for further inquiry into his guilt.
6. ' On these two points I rely on the judgment of this Court in the case State v. Aziz alias Abdul Aziz PLD 1985 Kar.
27. In the above case bail granted to an accused by the trial Court on the ground of further inquiry was cancelled by the High Court as High Court had come to the conclusion that since there were no reasonable groun & for believing that the accused had not committed a non-bailable offence, the ground of further inquiry was not available to .The accused. In the present case ocular testimony shows that the applicants were I armed with guns and they had fired at the time of the incident. The learned' counsel for the applicants laid much stress on the fact that the fatal injuries were attributed to co-accused, and, therefore, the case required further inquiry against the applicants. I am not in agreement with this contention of the learned counsel as he could not explain the fact that applicants duly armed with guns had approached the deceased, chased him and fired at him. To me it is a clear case of common intention on part of the applicants with the co- accused, and therefore, I find that section 34, P.P.C. Is attracted.
7. I do not agree that the case against the applicants required further inquiry as there is clear allegation against the applicants of having fired their guns towards the deceased and the complainant. For the arguments sake, if it is believed that the applicants are not responsible for causing the fatal blow to the deceased, still I find that the applicants will be responsible for attempt to murder as they had fired their guns towards the complainant party and the deceased, although they might have missed their target. The principle laid down in the above-cited case as enunciated by their Lordships Fakhruddin H. Shaikh and Abdul Hayee Kureshi, JJ. (as they were) speaks clearly that considering a case for further inquiry the requirement is that there should be no reasonable grounds for believing that the accused was guilty of the non-bailable offence. Since I hold that there is direct allegation of the participation of the applicants in the crime, I find that there are no reasonable grounds for believing that the applicants are not guilty of the offence charged with. Under these circumstances in view of the above-cited authority it cannot be considered that the case required further inquiry in respect of the common intention of the applicants..
8. ' As a result, this application fails and the same is dismissed.