' Rana Khan Bahadar got a report registered with Police Station Sadar Sadiqabad, District Rahimyar Khan at Serial No,285 of 2003 on 17-8-2003 with regard to an occurrence having taken place at 10- 00 a.m. On the aforesaid date under sections 302/34, P.P.C. The petitioner who has been involved in the F.I.R. After having failed to get the concession of bail from the learned Additional Sessions Judge, Sadiqabad on 25-11-2003, has filed this petition.
2. According to the story as narrated in the F.I.R., Khushi Muhammad, Muhammad Siddique, Muhammad Ansar and Muhammad Akbar were constructing a joint wall of Ihata when the informant alongwith Asghar Ali Nasir, Patwari reached at the spot and directed Khushi Muhammad to get the place measured before the wall was to be constructed. But they started using abusive language. Informant tried to restrain them. But Khushi Muhammad caught hold of the front portion of the shirt of Asghar Ali, near the neck while Muhammad Siddique grasped the collar of the shirt of aforesaid Asghar Ali from the rear side and pressed the neck of Asghar Ali. Ansar and Akbar inflicted fist blows at the belly and heart part of the body of Asghar Ali, due to which Asghar Ali became unconscious and ultimately expired on the way to the hospital.
3. The learned counsel appearing on behalf of Muhammad Ansar, petitioner has argued that from the contents of F.I.R., it is apparent that the petitioner had no intention to kill the deceased; that the petitioner had not caused the injury, which could be termed as fatal and causative of the death of Asghar Ali deceased; that no mark of violence was found by the Doctor, on the belly portion of body of the deceased; that no weapon was used, therefore, the intention to slay the deceased was lacking in the case. At the most according to the learned counsel, it was an incident, which had come into existence at the spur of the moment. Referring to the plethora of rulings, which are being noted below, the learned counsel has prayed for grant of bail after arrest to the petitioner- accused. In Ali Asghar and another v. The State PLD 1985 Kar. 609 fight had flared up all of a sudden. Element of premeditation was found missing, so the accused was granted bail. Referring to another ruling reported in Shaukat Ali and others v. The State 1986 PCr.LJ 2585 the learned counsel has prayed for bail as in that case when the parties had got no previous enmity and the things had happened at the spur of the moment, it was considered to be a case of individual liability, and the bail was granted. Relying on M. Hayat and others v. The State 1983 PCr.LJ 260, the learned counsel has stated that in above-referred case injuries were attributed to the petitioners of that case but the same were found to be simple in nature, yet he was granted bail and it was held that the applicability of section 149 of the P.P.C. Would be determined at the stage of trial by the learned trial Court. Another ruling reported in Muhammad Afzal v. The State 1990 PCr.LJ 928 was also produced by the learned counsel to support his contention that when death resulted out of a sudden affair and there was no preconcert common object within meaning of section 149 of the P.P.C., the bail was granted. In Nasrullah v. The State 1990 M LD 140 when the principle of vicarious liability could not be invoked against the accused, it was held that the case was of further inquiry and the bail was granted. Presenting yet another ruling reported in Moula Dad v. The State 2000 PCr.LJ 1096, the learned counsel submits that when vicarious liability of the accused for the commission of the occurrence was yet to be determined at the trial, the accused was granted bail.
In the last, he has relied upon another ruling reported in the same journal of the same year at page 165 with the nominal index of Nasir v. The State, and states that question of vicarious liability and the murder due to this fact was yet to be determined at the trial. Although fire-arm was used in that case, yet the accused was granted bail. The learned counsel has further argued that medical evidence is not supporting the case of the prosecution, as the doctor had opined that no injury on the person of the deceased was found which could cause the death to the deceased. As regards the report of Bacteriologists the learned counsel has submitted that it was a contradictory report.
The learned counsel has laid great stress on the fact that the petitioner was arrested on 23-10- 2003 and was in jail for more than six months, therefore, he was entitled to the grant of bail.
4. The learned counsel appearing on behalf of the complainant-informant has vehemently opposed the grant of bail. According to the learned counsel, the incident was reported in its natural way; no alteration/addition was made in it and the trouble was invited by the accused, when they had started the construction of a joint wall without the permission of the complainant party. The learned counsel has also relied upon the story narrated in the F.I.R. And has stated that specific role was attributed to the petitioner in the F.I.R. And that the petitioner was person, who had inflicted blows at the belly and near the heart of the deceased. According to the learned counsel, the petitioner is therefore, not entitled to the concession of bail. It has further been stated that as the accused has tried to destroy the medical evidence, which was to prove the correctness of the occurrence, therefore, he should not be granted bail. The hyoid bone was preserved by the doctor and was sent to the Bacteriologist, but when it reached at that place, only cotton with trachea tissues were found by the Bacteriologist. This fact of destruction of evidence was made by the collusion of accused with the police, who wanted that the medical evidence be destroyed. Even then the report had gone against the petitioner and it was found by the Bacteriologist that the cause of death was pressing of hyoid bone. The learned counsel has referred to Munawar v. The State 1981 SCM R 1092, in which on the basis of constructive liability, bail was cancelled. Khadim Hussain and others v. Shabbir Afzal and another 2002 PCr.LJ 794 has also been referred to by the learned counsel for the complainant, in order to plead his case by stating that question of vicarious liability could not be determined at the stage of bail was not a rule. If from the circumstances of a case, it could be gathered that the accused had pre-planned the scheme then the bail can be refused. The learned counsel to support his contention has also presented another ruling reported in Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1, which has also held that the cause of injury to the deceased and the intention can be seen from the narrated story and common intention and preconcert can be saddled with vicarious and constructive liability by invoking section 34 of.P.P.C. And in such case the bail can be declined. Muhammad Shahid v. The State 2002 SCM R 247 was also referred to by the learned counsel with this plea that only tentative assessm ent of the facts can be made at the bail stage. Another authority from jurisdiction of Sindh High Court reported in Syed Sameer Rauf v. The State 2002 M LD 1311 was also relied upon by the learned counsel, which had propounded that in depth appreciation of evidence was unwarranted at the bail stage.
5. The learned counsel appearing on behalf of the State has supported the case of informant by arguing that the report was a prompt one and specific role was attributed to the accused. Challan having been submitted on 31-10-2003 the petitioner was not entitled to the grant of bail.
6. I have considered the bail petition with the assistance rendered by all the learned counsel and have found that the occurrence was reported through a prompt F.I.R. Ansar was not attributed a role of catching hold of collar of Asghar Ali deceased from the reverse or the front side, which injury was found to have caused the death of the deceased by the Bacteriologist. Prima facie, it appears that the occurrence was not a pre-planned but had occurred at the spur of the moment. No lethal weapon was brought to the place of incident which fact itself in fact, was presenting the true picture of the intention. The use of abusive language when was not restrained, then the consequences and its repercussion, was, to happen in its natural result in the shape of reported incident. In these circumstances, I think it would be no use to keep the petitioner in jail for an indefinite period as the trial has not yet commenced. Therefore, the petitioner is allowed bail upon his furnishing bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.'
' The observations made in this bail order should be kept in mind to have been delivered for the purpose of bail only, which should not prejudice the case of any party at the trial.