1. ' The applicant is involved in an offence under sections 302, 337-A(ii) F(i), 147, 148, P.P.C. Arising out of Crime No,89 of 1999 of Police Station, Karampur.
2. ' The brief facts giving rise to this bail application are that complainant Allah Yar lodged F.I.R. With Police Station Karampur on 21-11-1999 at 11-00 p.m. Wherein he stated that he, his brother Abdul Fatah and relative Gaji were keeping guard over their fish pond when at about 11-00 p.m.
3. Applicant/accused Ali Hassan alongwith other accused, all armed with Lathis came there. It is stated that Abdul Fatah asked them as to why they had come there, upon which, they exchanged harsh words and Brohi accused gave Lathi blow to deceased Abdul Fatah who fell down. P.W. Gaji grappled with the accused who was caused blow by accused Wahid Bux. Thereafter Ali caused Lathi blow to Abdul Fatah and the remaining accused caused Lathi blows to deceased Abdul Fatah as well as to injured Gaji. They raised cries which attracted Ali Hassan and the accused decamped.
4. Complainant went near and found that Abdul Fatah had injuries on various parts of his body and was lying unconscious. The injured were then taken to Ghousepur Hospital, but since Abdul Fatah was serious, he was referred to Larkana Hospital where on the next night at about 4-00 a.m. Abdul Fatah succumbed to injuries and then complainant proceeded to police station and lodged F.I.R.
5. ' The police after registration of F.I.R. Took up investigation and submitted challan in the Court.
6. ' It is contended by Mr. Awan Rahamatullah Nadeem learned counsel for the applicant that the incident was premeditated and that fatal injury is not attributed to the present applicant. It is stated that there was no common intention and the applicant can only be responsible for the injury to P.W. Gaji. It is stated that the case of present applicant requires further enquiry. The P.I.R. Is delayed by two days. The reference is made to 1980 SCM R 784 and 1987 PCr.LJ 1404.
7. ' Mr. Ali Azhar Tunio, learned A.A.-G. Has stated no objection to the grant of bail on the ground that common intention of the accused to commit murder is lacking in this case and the fatal injury is not attributed to the present applicant.
8. ' The perusal of record reveals that all the accused with their common object and intention armed with Lathis went to the fish pond of complainant party for catching fish. The complainant party restrained them from catching the fish from the fish pond, upon which the accused were annoyed and caused injuries to deceased Abdul Fatah as well as to P.W. Gaji. The name of present applicant figures in the F.I.R. He is alleged to have caused Lathi injuries to deceased Abdul Fatah as well as to P.W. Gaji. The prosecution case is supported by ocular evidence of complainant, injured P.W. Gaji as well as Ali Hassan. They all have supported the case of complainant Allahyar. The Lathi used in commission of offence has been recovered from the applicant on the same date of this arrest i,e, 10-1-2000. P.W. Gaji who is injured has fully implicated the present applicant. The arguments to the effect that fatal blow is not attributed to the present applicant and, therefore, the case of present applicant requires further enquiry has no force as he was a member of unlawful assembly and had gone with the common object and intention for fishing purposes at the fish pond of complainant party and when the complainant party offered resistance, they started giving Lathi blows to deceased and P.W. Gaji. Under such situation the armed persons have attacked on unarmed victims and it is not necessary that each and every act of each member should be pin-pointed as to which assailant caused injury to whom and in what manner. The main point needs consideration is that the applicant has gone duly armed, with the intention for catching fish from the pond of complainant party and meet the situation howsoever tense it may be. The intention of all the accused was common and they cannot be absolved of the common object and the vicarious liability. Reference can be made to a case of Shahzaman and others v. The State (PLD 1994 SC 65) wherein their lordships have held as under:-- "We are of the view that in case, when armed assailants attacked unarmed victim omission to pinpoint in F.I.R. As to which assailant was armed with what weapon and who caused fatal injury would not make any material difference so far as conviction on the basis of charge under section 302, P.P.C. Is concerned, except on question of sentence if trial Court believes evidence produced by the prosecution. Section 34, P.P.C. Envisages that if a criminal act is done by several persons in furtherance of common intention, each of such persons would be held liable for that act in the same manner, as if it was done by him alone. In this case in F.I.R. There is allegation that all the three appellants were armed with Lathis and Sarya and all of them inflicted injuries on the deceased. Everything depends on the intrinsic value of the evidence which is produced by the prosecution and it is for the trial Court to evaluate that evidence and come to the conclusion according to law."
9. ' Every member of unlawful assembly is guilty of the offence committed in prosecution of common object. Section 149, P.P.C. Reads as under:-- "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
10. ' The reference can also be made to the case of Ghulam Nabi v. The State (1996 SCM R 1023).
11. ' The record indicates that deceased Abdul Fatah received seven injuries whereas injured Gaji received five injuries at the hands of the accused. So far the delay in lodging of the F.I.R. Is concerned, it is stated that since Abdul Fatah was serious and his brother was taken from one hospital to another for saving his life and proceeded to police station after the injured succumbed to injuries. This is a fresh case which has not yet proceeded. At this stage, it cannot be held that the case of present applicant requires further enquiry and that there appear no reasonable grounds to believe that the accused is not guilty of the offence with which he is charged. The case-law referred to by the learned counsel for the applicant has no relevance to the facts and circumstances of the case in hand. Bail is declined.