1. ' The applicants are facing trial for the offence punishable under sections 302, 324, 337-A(I) and 505/34, P.P.C.
2. ' The contents of the F.I.R. As reproduced in the bail application are as follows:-- "That I own 18 acres of agricultural land in Deh Nakhi and I am residing there in my own house alongwith my family members. Adjacent to my house, my cousin Adam son of Hakim Bugti and his son Hakim are residing there. I have two sons namely Hassandin aged about 15 years and Jaffer Khan aged about 7 years. I have three daughters. Mst. Mah Bano is the smallest daughter and is aged about 10/11 years, who also resides with me. That at a distance of about 4 acres Khair Muhammad alias Khairo son of Yusuf, Yousuf son of Sher Dil, Ali Sher and Sono Bugti also reside.
3. Today, at about 7-00 a.m. On hearing barking of dogs my daughter Mah Bano went out and stood facing the street and saw that dog of Yousuf son of Sher Dil Bugti was running towards my cousin Adam son of Hakim. Therefore, Hakim beat the dog. I, my son Hassandin and cousin Adam Bugti came out of the house and saw that Khario son of Yousuf Bugti having SBBL gun, Yousuf son of Sher Dil Bugti having Lathi, Ali Sher son of Yousuf armed with Lathi and Sono son of Hammal Bugti having Lathi in his hand came out from their houses and ran towards my cousin Hakim, therefore, Hakim ran towards us and in our presence Yousuf, Ali Sher and Sono started beating Hakim with their Lathis. Therefore, we raised cries that they should not kill the man. At that time accused Khair Muhammad alias Khairo Bugti in order to kill us directly fired from his gun which hit my daughter Mst. Mah Bano in her left arm on back side beneath the joint who cried and fell on the ground.
4. Therefore, accused persons went away to their houses abusing us. We immediately took Mst. Mah Bano to Civil Hospital, Sanghar but she expired at the gate of the hospital. Leaving the dead body in hospital in the custody of my son Hassandin, I have come for lodging F.I.R. That accused Yousuf son of Sher Dil Bugti, Ali Sher son of Yousuf Bugti, Sono son of Hammal Bugti have caused Lathi blows to Hakim Ali and my daughter Mst. Mah Bano has been murdered by Khair Muhammad alias Khairo Bugti by directly firing from his gun in furtherance of common intention. Therefore, I lodge this report for necessary action and also request for letter for treatment of injured Hakim."
5. ' Syed Ahsan Ali, learned counsel for the applicants has submitted that incident took place on the spur of moment and there was no premeditation, and therefore, the provision contained in section 34, P.P.C. Providing the liability in pursuance of common intention is not attracted. He has next contended that the applicants are alleged to have given Lathi blows to Hakim and co-accused Khair Muhammad is alleged to have fired with his gun at deceased Mah Bano. He has contended that the prosecution story is that Mah Bano was facing the accused persons, which is not compatible with the medical certificate, according to which the injuries are beneath the left arm towards back. He has submitted that this version is improbable and cannot be believed. He has lastly contended that the statement of prosecution witnesses were recorded after 10-12 hours of the incident. He has submitted that in the above circumstances, it is a case of further inquiry, so far the applicants Yousuf and Ali Sher are concerned, who were allegedly armed with Lathis and they may be released on bail. In support of his contentions, he has placed reliance on the following judgments:--
(1) Syed Muhammad Shah v. The State 1993 SCM R 550,
(2) Muhammad Arshad v. The State PLD 1996 SC 122,
(3) Athar Khan v. The State PLD 1972 Lah. 119,
(4) Aftab Ahmed Khan v. The State 2001 PCr.LJ 1038,
(5) Noor Ellahi v. The State 2001 PCr.LJ 1,
(6) Dhani Bux v. The State 2002 M LD 35 and
(7) Ataullah v. The State 1999 SCM R 1320.
6. ' He has further contended that the accused would be entitled to bail in case of reasonable doubt about their participation in the crime. In support of his contention, he has placed reliance on the judgment of Supreme Court in the case of Tariq Bashir v. The State PLD 1995 SC 34.
7. ' On the other hand, learned Assistant Advocate-General and Mr. Muhammad Akbar Bajwa, learned counsel for the complainant have vehemently opposed the bail application. They have contended that the accused persons are residing at a distance of 1-1/2 acres from the house of the complainant where the incident has taken. Place and all the accused persons came together armed with Lathis and gun from their house, which is indicative of the fact that they acted in pursuance of their common intention and as such, there was pre-consort and pre-planning, on the part of the applicants. They have further submitted that all the accused persons have actively participated in the commission of offence. Every accused has used the weapon with, which he was armed. The persons armed with Lathis, gave Lathi blows to Hakim while accused Khair Muhammad, armed with gun, fired his gun causing death of minor baby deceased Mah Bano. They have further submitted that the F.I.R. Has been lodged promptly. The applicants are named in the F.I.R., there is no case of mistaken identity as the accused persons were already known to the complainant party and there is'no enmity or for false implication of the accused persons. They have further submitted that crime-weapons have been recovered from the accused persons and two empties have also been recovered from the place of incident. Mr. Mukhtar Ahmed Khanzada, learned Assistant Advocate-General and Mr. Muhammad Akbar Bajwa, learned counsel for the complainant have contended that the present applicants, who came armed with Lathis alongwith co-accused including Khair Muhammad, who was armed with gun and acted in prosecution of the common intention. They have submitted that the present applicants are vicariously liable for the murder of minor baby Mah Bano and at this stage the deeper appreciation of the evidence is not warranted.
8. In support of their contentions, they have placed reliance on the following judgments:--
(1) Muhammad Ishaq v. The State 1996 PCr.LJ 845,
(2) Hashim and 2 others v. The State 1996 PCr.LJ. 1681 and
(3) Munawar v. The State 1981 SCM R 1092.
9. ' I have carefully considered the contentions raised by the learned Advocates for the parties, and have gone through the F.I.R. The presence of the present applicants at the place of incident is shown in the F.I.R. And they have been named in the F.I.R., which was lodged promptly. Nothing has been brought, on record for false implication of the present applicants.
10. ' So far the judgments, on which Mr. Syed Ahsan Ali, learned counsel for the applicants has placed reliance, I find that the first three judgments are in the appeals and not in respect of the bail application. The scope of bail applications and appeals are not the same and, therefore, principles laid down for appreciation of evidence, while hearing appeals are not to be employed while deciding bail applications. I am, therefore, of the opinion that the first three judgments on which Mr. Syed Ahsan Ali, learned counsel for the applicants has placed reliance are not relevant for the purpose of deciding bail application.
11. ' So far the judgment, in the case of Aftab Ahmed Khan (supra), is concerned, I am not persuaded to agree with the view of learned Single Judge of the Lahore High Court. The facts of the stated case were that the accused persons, who were granted bail took the deceased from his arms and legs and threw him on the ground and the co-accused caused fatal injury with dagger. It was held that the role of the said accused persons required further inquiry. I am not persuaded to agree that the role of the accused needed further inquiry. Taking of such view would totally exclude the concept of vicarious liability and commission of offence in pursuance of common intention or prosecution of the common object, of the accused persons. In the case of Noor Ellahi (supra) the persons, who were granted bail were empty-handed, no overt act was attributed to them and they were merely alleged to have raised Lalkara. The facts of the above cited case were, therefore, distinguishable and in addition, the accused persons were facing trial for the offence punishable under section 324/34, P.P.C. Only. There was no allegation of causing any death during the course of commission of offence. The ruling is, therefore, not attracted to the facts of the present case.
12. ' In the case of Dhani Bux (supra) the accused who was granted bail was not armed with any weapon and had not taken any part in the commission of offence. No overt act was attributed to him and he was merely alleged to be present at the scene of occurrence. It was, therefore, held that there was no case of vicarious liability. The facts of the cited case were distinguishable from the facts of the present case.
13. ' In case of Attaullah (supra) the order of the High Court cancelling bail of accused was set aside for the reason that the trial Court had rightly granted bail to a person, who had not caused any injury. The detailed facts are not given in the cited judgment and until and unless the facts of the two cases are similar, which is seldom in criminal cases, it is not possible to apply the ratio of judgment in criminal cases. It is trite law of criminal administration of justice that judgments in criminal cases are confined to the facts of a particular case and are not to be treated as precedent until and unless the facts of two cases are similar, which, I have already observed, are very seldom. The judgment in a criminal case shall have the force of precedent, if any principle of law had been proponded, which is of general application.
14. ' As regards the judgment of Honourable Supreme Court, in the case of Tariq Bashir (supra), I find that the facts and circumstances are entirely distinguishable. In the cited case, the accused persons were granted bail by the High Court and subsequently, the bail was cancelled by another Judge of the Sindh High Court. Thus, the moot point for consideration was, whether it was fit case for cancellation of bail already granted by the High Court. It was held by the Honourable Supreme Court that the consideration for grant of bail and for cancellation of bail are different all together.
15. Once bail is granted, strong and exceptional grounds would be required for its cancellation. It was observed by Honourable Supreme Court that to deprive an accused of bail after grant of bail is a most serious step to be taken. It should not be resorted to until there is some legal compulsion to cancel the bail of accused. Since the issue before the Honourable Supreme Court was entirely different, therefore, the ratio of judgment is not attracted.
16. ' Coming to the judgments, on which Mr. Mukhtar Ahmed Khanzada, learned Assistant Advocate- General and Mr. Muhammad Akbar Bajwa, learned counsel for the complainant, have placed reliance, I find that in the case of Muhammad Ishaq (supra) it has been observed that assemblage of accused party with weapons, sufficiently reflect their pre-arranged plan having common intention. The petitioner who alongwith co-accused had actively participated in commission of crime was held to be vicariously liable for the offence. In addition to the role played by him, it was observed, that it is immaterial to particularize as to whose fire hit whom and from what distance, as it was the job of the trial Court to determine specifications and to fix responsibilities. The bail plea was rejected.
17. ' In the case of Hashim and 2 others (supra), a plea was taken before a learned single Judge of this Court, that, there were general allegations of causing Lathi blows against the applicants and no specific role has been assigned to them. The bail was opposed on the ground that all assailants including applicants committed crime in furtherance of their common object duly armed with hatchets and Lathis. The presence of the applicants at scene of offence was not disputed and it was observed that question of their false involvement cannot be determined at bail stage. It was further held that the applicants were vicariously liable for the commission of the crime committed by the co-accused as there was prima facie evidence of sharing a common intention. The bail plea was rejected.
18. ' In the case of Munawar v. The State (supra), it was observed by the Honourable Supreme Court that the view that a person, who does not cause injuries to deceased, cannot be burdened with constructive liability at time of considering question of bail was not correct. It was further held that if the condition set out in provision of law spelling out constructive liability of accused concerned is fulfilled, he can be said to be guilty of an offence punishable with death or imprisonment for life. It was further held that the petitioner and his companions came armed with deadly weapons and in pursuance of their common intention one of them fired at deceased, and the petitioner merely caused injury to the another person. In such circumstances, it was not possible to hold that petitioner did not share common intention with co-accused and it was further held that the High Court rightly held that principle of vicarious liability was attracted to the appellant.
19. Now reversing back to the facts of the present case in the light of rulings cited at bar, I am of the considered opinion that principles laid down, while hearing appeals are not attracted at the stage of considering bail plea, for the simple reason that during the course of hearing of appeal, in-depth scrutiny of entire evidence is required to be made, while at the stage of considering bail plea, a mere tentative assessm ent is to be made and no in-depth examination of the fact is warranted. So far the question of vicarious liability is concerned; it is also to be determined on the basis of tentative assessm ent. In the present case, the applicants are named in the F.I.R. And are alleged to have arrived at scene of occurrence duly armed, alongwith co-accused Khair Muhammad, who is alleged to have fired with his gun at deceased minor Mah Bano causing her death, and therefore, I am of the opinion that the law, as laid down by the Honourable Supreme Court in the case of Munawar v. The State 1981 SCM R 1092, is fully attracted to the facts and circumstances of the present case. The applicants cannot be absolved of vicarious liability of causing death of an innocent soul baby Mah Bano, aged 7 years. There is nothing on record to show that there is any reason for false implication of the applicants or the complainant has any axe to grind against the applicants.
20. ' For the foregoing reasons, I am of the view that it is not a fit case for grant of bail and consequently, the bail application is rejected.