DHANI BUX and anothers vs THE STATE
This bail application arises from a double murder case where the applicants were alleged to be present at the scene but were not assigned any overt act, nor were they armed. The prosecution's case relied on the presence of the applicants and the theory of common intention with the principal accused, who had confessed to the murders without implicating the applicants. The police had initially found the applicants innocent during the investigation. The core legal question was whether the applicants, being empty-handed and having no specific role assigned, could be held to share a common intention sufficient to deny bail. The Court held that common intention is a question of fact to be determined at trial. Given that the applicants were unarmed and the principal accused acted alone in the commission of the crime, the Court found that the applicants' case required further inquiry. Consequently, the Court granted bail, establishing the principle that mere presence at the scene without evidence of active participation or shared intent does not automatically establish common intention for the purpose of denying bail.
- Does the mere presence of an accused at the scene of a crime, without any overt act or possession of a weapon, establish common intention for the purpose of bail?
- Can bail be granted when the police investigation report places the accused in Column No. 2 of the challan?
- Is the question of common intention a matter that requires further inquiry at the bail stage when the accused is alleged to be empty-handed?
- Section 193, Code of Criminal Procedure 1898
ORDER
1. ' RAHMAT HUSSAIN JAFFERI, J.---This order will dispose of above two bail applications as they arise out of common F.I.R. Bearing No.81 of 2004 of Police Station, Rohri.
2. ' This is a double murder case. The incident took place on 6-10-2004 at 8 a.m. In the house of complainant Shamsuddin. It is alleged that accused Saeed Ahmed armed with gun, the present applicant and one released accused Roshan went to the house of complainant. There was matrimonial dispute between the parties. Accused Saeed fired from his gun at the deceased Mst.
3. Tasleem and Suhail Ahmed. They died at the spot. No overt act or any other part has been assigned to remaining accused and thereafter the accused ran away. The police investigated the case and found the present applicants and Roshan innocent as they could not get any evidence connecting the applicants and Roshan with the crime, therefore their names were put in Column No.2 of the challan. Subsequently complainant moved an application under section 193, Cr.P.C. Before the trial Court. Learned IIIrd Additional Sessions Judge joined all the three released accused in the case and remanded them to custody.
4. ' The accused moved bail application before the Court but the same was dismissed; hence the present application.
5. ' Learned counsel for the applicants has stated that no part has been assigned to the applicants, that the applicants were empty-handed, that there was no common intention between the accused to commit the offence, that the applicants book the plea of alibi that they were not present on the date, time and place of the incident which was accepted by the police after collecting evidence. They have further stated that co-accused Saeed had made judicial confession in which he implicated himself only and that he had not implicated any other accused persons including the present applicants, therefore, the case of applicants requires further enquiry.
6. ' Conversely the learned State counsel has stated that names of the applicants are mentioned in the F.I.R., that the presence of the applicants at the place of incident has been supported by the eyewitnesses, that the applicants had shared common intention with co-accused Saeed, therefore, they are equally responsible for the commission of offence. He has further stated that plea of alibi can be considered at the stage of trial.
7. ' Learned counsel for complainant has adopted the arguments of learned A.A.-G. And further added that this is a double murder case, therefore, the applicants may not be granted bail.
8. ' I have given due consideration to the arguments, gone through the material available on record and found that in the incident two persons have lost their lives. The question arises as to who is responsible for causing the murder of the said persons. According to the prosecution, the allegation has been levelled against co-accused Saeed of causing fatal injuries to both the deceased persons. The prosecution themselves alleged that the applicants were empty-handed at the time of incident. It is not the case of the prosecution that the applicants had made any Lalkara, instigation or participated in the crime in any manner. They appear to be silent speculators. From the facts and circumstances of the case, the prosecution simply alleged that the applicants were present at the scene of incident.
9. ' The learned trial Court has also rejected the bail application on the ground that the applicants shared common intention with co-accused Saeed Ahmed. Common intention can be gathered from the facts and circumstances of each case. In the present case if the applicants had common intention to commit the murder, which is a serious one then they must had made themselves armed with some deadly weapons in order to achieve the object of common intention. However the applicants were empty-handed which clearly indicates that their intention was not as that of co-accused Saeed Ahmed who had armed himself with gun and subsequently used it to achieve his nefarious design. However, this is a tentatively finding which will not affect the trial Court at the time of decision but tentatively from the facts and circumstances of the case at this stage it appears that the common intention between all the accused is a question of fact which can be decided at the time of trial when proper evidence is recorded. There is no other allegation or evidence against the present applicants to connect them with the commission of this crime as such the applicants are entitled to the concession of bail. Therefore, the applicants are granted bail subject to their furnishing solvent surety in the sum of Rs.2,00,000 (Rs. Two lac only) each and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
10. ' Cr. B.As. Nos.79 and 228 of 2005 stand disposed of in the above terms.