TASAVER and another vs THE STATE

ORDER

' FAZAL-E-MIRAN CHAUHAN, J.--- The petitioners seek post-arrest bail in case F.I.R. No,164, dated 20- 4-2005 registered with Police Station Yousafwala, District Sahiwal for an offence under sections 302/ 324/452/440/148/149/109, P.P.C.

2. Briefly, the allegation against the petitioners as per F.I.R. Is that they along with their co-accused came at the scene of occurrence and started firing at the complainant as a result whereof niece of the complainant lost her life. The motive as stated in the F.I.R. Is the litigation with regard to the agricultural land which is pending.

3. It is argued that only role attributed to the petitioners is that they along with their co-accused made ineffective firing during the occurrence; that both the petitioners neither caused any injury to the deceased nor to any P.W. During the occurrence. Further argued that no recovery was affected from petitioner No,1 that section 452, P.P.C. Was added by the police with mala fide intention to establish that the petitioners along with other accused entered the house of complainant and committed murder of Mst. Manzoor Bibi. Further argued that the cross-version has not been recorded as, in fact, Mst. Manzoor Bibi deceased lost her life due to the injuries received by her during the cross-firing which took place between the parties. Further argued that no motive is attributed to the petitioners to participate in the said occurrence and commit the murder of Mst.

Manzoor Bibi; that the petitioners have been implicated in the instant case on the basis of vicarious liability/ share of common intention with other co-accused for the offence allegedly committed by the other co-accused which matter requires evidence and will be decided by the learned trial Court after recording the same; that since the petitioners had not committed the murder of Mst.

Manzoor Bibi, therefore, they cannot be held responsible for the same. Further argued that during the investigation section 452, P.P.C. Has been deleted clearly negating the prosecution story.

Further submits that it was the complainant party who with the intention to grab property of the petitioners and of the co-accused have involved them in this case falsely; that no recovery has been affected from respondent No,1; that .30 bore pistol recovered from petitioner No,2 was licensed one; that case against the petitioners is that of further inquiry. And that it is yet to be established whether it is a case of vicarious liability or a case of common intention. Reliance is placed on Nabi Bux alias Nabu v. The State 2005 YLR 1531; Muhammad Sadiq and another v. The State 1996 SCM R 1654; Muhammad Akram v. The State 2005 PCr.LJ 596; Yaroo v. The State 2004 SCM R 864 and Muhammad Haroon and another v. The State 1994 SCM R 2161.

4. Conversely, the learned counsel appearing on behalf of the complainant opposed the instant petition arguing that it is a promptly lodged F.I.R.; both the petitioners have specifically been named in the F.I.R. And a specific role has been attributed to them. Further submits that the petitioners along with other co-accused in fact joined them to take possession of the land as well as the house. Further submits that .30 bore pistol was recovered from petitioner No,2. Learned counsel for the State also vehemently opposed this bail application.

5. I have heard the learned counsel for the parties and have also perused the record. Perusal of the F.I.R. Reveals that no role has been ascribed to the petitioners except making ineffective firing at the time of occurrence. Hence, the common intention of the petitioners to cause murder of Mst.

Manzoor Bibi would be one of further inquiry as per settled law on the subject. The petitioner had not used their weapon at all to cause injury to the deceased or the witnesses making their case of ineffective firing. Consequently, the object of common intention in the Murder of Mst. Manzoor Bibi is one of further inquiry, it is yet to be established whether the petitioners can be alleged to have common intention in the murder of Mst. Manzoor Bibi. The intention is always subjective state of mind and it is-indeed difficult to decide at this stage unless there is a compelling evidence available for a positive deduction. In the circumstances of the case I am, therefore, of the view that it is a case of further inquiry.

6. For all the reasons mentioned above, I allow this petition and direct release of the petitioners on bail subject to their furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.