Mr. Muhammad Ibrahim, iSub-Inspector, Police Station, Jaranwala, District Faisalabad is also in attendance with record.
2. This order disposes of application for enlargement on bail of Muhammad Rafiq and Muhammad Shafique petitioners herein who have been alongwith Muhammad Ramzan alias Jani, charged for the murder of a co-villager named Abdul Haque, allegedly committed by the accused in furtherance of a common intention.
3. Heard either side. Concisely, the facts alleged by the prosecution are that the parties have their residences in the same lane in Chak No. 70/G. B. Within the jurisdiction of Police Station, Jaranwala, District Faisalabad. Muhammad Ramzan alias Jani, the principal accused in the case who is not before me and Muhammad Rafiq, petitioner No. 1, are real brothers while Muhammad Shafiq, petitioner No. 2 is their first cousin. On 10th of September, 1977, at about 6 00 p. m. Muhammad Afzal complainant at whose instance the case was registered against the accused and Abdul Haque, uncle of the complainant, were present in the lane outside their houses. The accused armed with lathts emerged from their houses shouting that they will avenge the insult to their women folk.
Muhammad Ramzan opened the attack and dealt an injury to Abdul Haque deceased in the head with lathi in his hand as a result of which he fell down and became unconscious. The petitioners caused injuries to the complainant and Munir Ahmad a cousin of the complainant who was attracted to the site by commotion. Abdul Haque was taken to the hospital for treatment in a cart but he expired during the way. The doctor who held autopsy on the dead body of Abdul Haque had reported that the deceased had a contused swelling 3" x 2' on the right side of the head 3' above the right pinna. The deceased had died due to shock and compression of brain as a result of the injury which was fatal in the ordinary course of nature. Muhammad Afzal and Munir Ahmad were also examined medically and found to have on them 8/2 injuries respectively, all caused by blunt weapons and simple in nature. Application for grant of bail to the petitioners was turned down by learned Additional Sessions Judge for the reason that it was not possible to distinguish the case of the petitioners from that of Muhammad Ramzan who had allegedly dealt fatal injury to the deceased. Apparently, the provisions in section 34, P. P. C. Were attracted to the facts of the case.
4. Learned counsel for the petitioners says that for the purpose of disposal of the instant application he concedes involvement of the petitioners in the occurrence. However, he contended, vehemently, that the rule of vicarious liability had been applied too readily against the petitioners by learned Additional Sessions Judge. The facts of the case do not justify even a provisional view that the petitioners had preconceived or premeditated the death of Abdul Haque deceased at the hands of Muhammad Ramzan. Precise intention of several persons acting in concert which is a state of mind has to be inferred from their conduct. The petitioners had not caused any injury to the deceased. There was nothing to prevent them if they had so intended. The question if the petitioners shared the intention of Muhammad Ramzan and could be held liable vicariously for his act in causing death of the deceased is a matter of further inquiry. The case, therefore, falls under subsection (2) of section 497, Cr. P. C. Following authorities :- {{FOOT NOTE}}
(I) 1977 P Cr. L J 519 ; (ii) 1976 P Cr. L J 1059 ; (iii) 1976 P Cr. L J 1198 and (4) 1977 P Cr. L J 984. {{FOOT NOTE}} were cited in support of the above contention. In all these cases of murder under section 302, P. P.
C. The accused who had caused simple injuries to the witnesses only and had done no harm to the deceased were admitted to bail. Variance in the circumstances of the precedent cases at Nos. 1 to 3 and the facts of the case in hand is not denied. These decisions appropriately apply here by way of analogy. The case at Sr. No. 4 above bears a close similarity to the case in hand. Rather, comparatively the petitioners in this case stand on a firmer ground for the prayer for release on bail. In that case the accused had ambushed the complainant side while in this case the occurrence does not appear to have been pre-planned. The accused, who had not caused any injury to the deceased, although they had otherwise actively participated the offence were allowed bail. Learned counsel for the State conceded that he could not cite any authority with a contrary view.
5. In the result, the contention that over all tentative assessment of facts of the case does not justify the view that there were reasonable grounds 877 for believing that the petitioners were alike Muhammad Ramzan guilty of charge punishable with death is evalued in their favour. They both are allowed bail in the sum of Rs. 10,000 (Ruspees ten thousand) with two sureties each with personal bonds in the like amount to the satisfaction o Assistant Commissioner/Duty Magistrate, Jaranwala, District Faisalabad. After attestation bail/personal bonds shall be immediately sent to the learned Sessions Judge, Faisalabad for record.