1. ' Bail is sought in Crime No,2 of 2001 initially registered with Police Station Talhar, District Badin under sections 324, 147, 148, 149, 504,.337-A(i) and 337-F (i) and 504, P.P.C. With subsequent addition of section 302, P.P.C. As one of injured namely Raja, a brother of the complainant succumbed to the injuries received by him in the incident.
2. ' Briefly , stated, prosecution story as per F.I.R. Lodged on 2-1-2001 at 22-00 hours, is that complainant party including the complainant, his brothers Abdul Hakim alias Judge, Raja, Mujeeb and Saian a minor nephew of the complainant came in village Raju Khanani where on the complaint of the above mentioned minor boy that he was maltreated by accused Azeem, some skirmish ensued between the parties as a result whereof accused Azeem issued threats to the complainant party of dire consequences. It is alleged that after finishing with their business in Raju Khanani at about 7-00 p.m. The same day the complainant party headed for their village and when reached on western side of Mir Lakhi Water-course they were intercepted by applicants namely Bhooro, Bunday Ali, Muhammad Azeem and others co-accused Gul Hassan and Taj, duly armed with hatchets. It is further alleged that co-accused Gul Hassan and Taj caused hatchet injuries to deceased Raja whereas the applicants caused sharp side hatchets injuries to the complainant, his brother Abdul Hakim alias Judge and Mujeeb on which they raised cries attracting P.W. Jani and others. In the scuffle, accused Gul Hassan and Taj are alleged to have received injuries by their own associates.
3. ' Contentions of learned counsel for the applicants are that F.I.R. Is delayed by three hours. There is no motive, general allegations of causing injuries have been leveled against applicants, no injury suffered by the deceased Raja has been attributed to the applicants hence they cannot be held responsible for his death and that the injuries to other injured persons attributed to applicants have been declared as constituting no offence falling within the prohibitory clause of section 497(1), Cr.P.C. Hence the case of the applicants is different to the case of co-accused Gul Hassan and Taj and vicarious liability of applicants, if any, can alone be attended to at trial, and at this stage, the case against them is a matter of further inquiry. Learned counsel contended that there is conflict in between the ocular evidence inasmuch as the allegations against the applicants are that they caused sharp side hatchet injuries to the above named injured whereas the medical certificate issued in respect of injured/complainant Mir Chutto reflects that he, beside incised injury, received with some hard substance an injury on right side of his forehead. He further contended that the injuries caused to accused Gul Hassan and Bunday Ali in which Bunday Ali is said to have lost his middle finger stand almost unexplained which cast doubts on the version of prosecution. Learned counsel placed reliance on case of Muhammad Afsar y. The State (1994 SCM R 2051), case of Mumtaz Hussain and 5 others v. The State (1996 SCM R 1125), case of Muhammad Aslam and another v. The State through A.-G. Punjab and another (1997 SCM R 251), case of Jan Muhammad v. Haji Noor Jamal (1998 SCM R 500), case of Faraz Akram v. The State (1999 SCM R 1360), case of Saleem Khan v. The State (1999 PCr.LJ 140), case of Shafi Muhammad v.
4. The State (1999 PCr.LJ 890), case of Allah Dino v. The State (1999 YLR 1930), case of Lakha Dino v The State (2002 M LD 610) and case of Allah Rakha v. The State (2002 PCr.LJ 1031).
5. ' Learned counsel for the complainant has vehemently opposed the grant of bail. In support of his views, he submitted that the recovery of the hatchets was effected from the applicants on the day of their arrest viz., 24-1-2001, F.I.R. Undisputedly suggests two incidents; second incident taking place when, as a result of the first incident, all the accused armed with hatchets formed an unlawful assembly, ostensibly sharing common intention to make an assault on the complainant party, intercepted them at the place of incident and caused them grave injuries inasmuch as that deceased Raja receiving sharp side injuries from co-accused Gul Hassan and Taj expired subsequent to the lodgment of the F.I.R. And the complainant and his associates also received injuries i,e, complainant Mir Chutto received injury on forehead and other parts of the body, injured Mujeeb suffered incised wound on his left arm at wrist-joint and the injured Abdul Hakim received incised injuries on the left side of temporal region cutting off his left ear with skull bone visible which fact is supported by the medical certificates. He submitted that the seat of injuries on the person of complainant and injured Abdul Hakim are reflective of the intentions of applicants that they intended to cause death of the injured persons moreover, all the accused are jointly responsible for the entire incident supported by evidence of witnesses. He further submitted that F.I.R. Reveals that the accused persons received injuries in the scuffle by their own associates which fact has neither been challenged nor any F.I.R. Was lodged of any direct complaint filed. He placed reliance on case of Nazar Muhammad v. The State and another (PLD 1978 SC 236). Lal Muhammad v. The State 1990 SCM R 315), case of Dilbar Baig v. The State 1998 SCM R 358), case of Qadar Mand v. Muhammad Amroze and 4 others (1998 SCM R 496), case of Ainullah v. Nazool and another (1999 YLR 1303), case of Tubbasam Ahmed Qureshi v. The State (2000 PCr.LJ 105) and case of Khadim Hussain and 5 others v. Sher Afzal and others (2000 PCr.LJ 974).
6. ' Learned A.A.-G., not controverting the injuries to complainant and his 2 brothers, submitted that the names with specific role assigned to the applicants are mentioned in the F.I.R., the prosecution case as put forth in the F.I.R. And supported by witnesses suggests that applicants preplanned the offences by forming unlawful assembly and that vicarious liability can be sifted even at bail stage looking to gravity of offence. He also explained the delay of three hours by stating that the police station is at a distance of 15 K.M. From the place of incident which took place in the late hours of the evening and it was not possible for the complainant in rural area to reach the Police Station without availing time, of three hours. He placed reliance on the case of Ghulam Nabi v. The State (1996 SCM R 1023), case of Arshad v. The State and another (1996 SCM R 1270), case of Hashim and 2 others v. The State (1996 PCr.LJ 1681) and case of Akhtar Hussain v. The State (2000 PCr.LJ 315).
7. ' I have given my anxious consideration to the arguments of learned counsel appearing for the parties and with their assistance I have examined the material made available before me.
8. Prosecution story as above reveals that two incidents took place on the same day, one in the earlier part of the day in the town of Raju Khanani and the other at evening time. Version of complainant in F.I.R. Materially supported by P.W. Jani reflected that during the first incident the complainant party was issued threats of dire consequences and in the second incident all the accused including the applicants are alleged to have arrived at the scene of occurrence duly armed with hatchets and using sharp side of hatchets have caused injuries to complainant party in which one of their associates lost his life. Thus, tentatively assessed, all the accused forming unlawful assembly are responsible. Applicants are alleged to have caused injuries to 3 persons of whom complainant, Mir Chutto and Abdul Hakim received injuries on their vital parts. There is no dispute that injuries attributed to the applicants have been declared to constitute offence punishable for not more than seven years but the gravity of offence taking place in the back of the case, cannot be lost sight of, at this stage.
9. ' I have carefully gone through the case-law cited by the learned counsel for the applicants and in my humble opinion the same does not appear relevant to the case of the applicants hence of no assistance being in distinguishable circumstances. As against that in case of Nazar Muhammad (supra) cited by learned counsel for complainant it has been observed that:-- "In the instant case, as is apparent from the facts noticed above, the complainant party was waylaid by the accused persons killing one of them. The petitioner was armed with a gun which he fired in the alleged attack injuring Sadaqat Ijaz P.W. Once it is accepted that the petitioner was a member of the unlawful assembly so that he shared the common intention with those who are alleged to have caused the death of Rafaqat Iftikhar, it is wholly immaterial that Sadaqat Ijaz sustained a simple injury. Prima facie, we are of the view that on the facts, as presently appearing, the petitioner is vicarious responsible for the major offences and his case is covered by section 497(1) of the Code of Criminal Procedure."
10. ' In another case, Khadim Hussain and 5 others (supra), cited by learned counsel for the complainant, following has been observed:-- "After hearing the respective contentions of the learned counsel for the parties perusing the record, it may be stated at the very outset that it cannot be laid down as an inflexible rule of law that question of vicarious liability cannot be determined at the stage of bail. If in the circumstances of case it can be gathered that the accused pre-planned a scheme, hatched a conspiracy and in execution of that plan or conspiracy that participated in the commission of offence, the question of vicarious liability applies with full force. However, this has, to be ascertained cautiously without entering into detailed scrutiny and appreciation of merits of the case of the prosecution. For application of section 149, it is necessary--
(i) that one should be a member of an unlawful assembly;
(ii) that in prosecution of common object of that assembly the offence should be committed by a member of an unlawful assembly;
(iii) That the offence should be of such a nature that the members of the assembly knew that offence is likely to be committed in prosecution of their common object."
11. ' In the case of Allah Dino and another (supra) cited by learned counsel for the complainant again, the following has been observed: "4-A. The perusal of record shows that applicant Allah Dino being armed with pistol fired upon the complainant with the result complainant received fire-arm injuries on the left leg. The injuries are corroborated by medical evidence. Merely because the medical officer has opined that injuries which complainant has sustained are Shujja-i-Khafifa, punishable, for two years. Ghayr-e-Jaifah Damiyah, punishable for two years, Ghayr-e-Jaifah Mutalahimah, punishable for three years, are no ground for grant of bail in each and every case. The Medical Officer is not a judge in the matter.
12. It, is the function of the Court to determine the gravity of offence after considering the act of the accused in the light of peculiar facts and circumstances of each case.
(5) It is not universally accepted rule of law that in each and every case, which is not punishable with death, imprisonment for life or for ten years bail must be granted. The superior Court has time and again laid down the rule that in non-bailable offence grant of bail is not right but a concession and if there are reasonable grounds to believe that accused is guilty of the offence which are non- bailable Court can refuse the bail. The offence under section 324, P.P.C. With which applicant is charged is punishable with ten years. Specific allegation of causing fire-arm injuries has been attributed to him, therefore, he is not entitled to bail and his bail plea is dismissed."
13. ' It is a well-settled principle that grant of bail in each and every case not punishable with death or life imprisonment or for ten years without considering the gravity of the offence is not a rule of law.
14. Reference can be made in the case of Tubasam Ahmed Qureshi (supra).
15. ' I have already stated hereinabove that the applicants have caused injuries to the injured above- named in such a manner that gravity of their wrongful acts cannot be lost sight of. Rule of vicarious liability to be sifted at trial is not inflexible. In this I am supported by the case-law referred to above.
16. In the circumstances, I am clearly of the view that there are reasonable grounds available to connect the applicants with the commission of the offences alleged against them. I do not find any merit in this bail application which is dismissed accordingly.
17. ' Before, I part with, it is brought on record that the views expressed above are tentative and may not be taken to prejudice the case of any party at trial. Moreover since the applicants are in jail from the date of their arrest viz., 24-1-2001 the trial Court shall make all possible efforts to see that the trial is concluded as early as possible.