OMAR ILYAS, OMAR HAYYA Versus THE STATE

ORDER

This order will dispose of Criminal Miscellaneous No. 3220/B of 1974, filed by Umar alias Umar Hayat and Meera both sons of Sardara and Criminal Miscellaneous No. 3224/B of 1974, filed by the same persons. They are accused along with some others in two different murders, committed in two different villages, although the two places of occurrences are situated at a distance of about 3 to 4 killas from each other. The first case i.e. F. I. R. No. 19/16, dated 11-2-1973, was registered at Police Station Baragarh. The deceased in that case was Khan. He is said to have been attacked at his dhari by:---

(1) Ashraf, son of Ahmad, armed with a gun,

(2) Muhammad Ameer, son of Ahmad, armed with a spear,

(3) Meera, son of Sardara (petitioner), armed with a spear, and

(4) Umar Hayat, son of Sardara (petitioner), armed with a pistol.

2. The motive for the murder is stated to be that Mst. Mehran, the sister of Muhammad Ashraf, son of Ahmad co-accused had been abducted, and Wali Muhammad, the brother of Khan deceased was suspected in that respect.

After having committed this murder the four accused, alongwith two others, namely, Guhulam, son of Nawab and Humayun, son of Ghulam, both armed with guns, are said to have gone during the same night to the dhari of Rehman and killed him. For this murder a case was registered vide F. I. R. 1972, dated 11-2-1973, at Police Station Syedwala, District Sheikhu pura, while in the first case the fatal shot was attributed to Ashraf, son of Ahmad, in the second case the fatal shot was attributed to Ghulam, co-accused.

3. The learned counsel for the petitioners submitted that there is old standing enmity between the parties which is admitted in the second F. I. R., and that for this reason, while the murders might have been committed by only some of them, the others were named due to the aforementioned enmity. He submitted that the possibility of false involvement is evident from the fact that although the two murders are said to have been committed during the same night, at short interval and at short distance from each other, the complainant in the second F. I. R. considered it proper to name two extra persons, namely, Ghulam and his son Humayun, with whom there was enmity, there is no indication on the record as to where and when, during the short interval between the first and second incident these two persons had joined the other four co-accused. The counsel submitted further that, for the same reason, the possibility of false involvement in the first case cannot be ruled out. On this basis he argued that Umar Hayat and Meera sons of Sardara, the two petitioners in the two bail applications, who have rip direct motive for the murders and have not been attributed any injuries to any of the deceased persons, have been mentioned in the two F. I. Rs., merely due to enmity so that the whole family is involved in the cases and no one is left to defend Ashraf (who is attributed the firing on Khan deceased), and his brother Muhammad Amir co-accused.

4. The learned State Counsel has opposed the bail applications submitting that the mere presence of the accused is enough to make them vicariously liable for the main offence notwithstanding the fact that they had not played any active role or caused any specific injuries to any of the two deceased.

5. The learned counsel for the petitioners pointed out that in a number of cases where the accused persons have not been attributed any active role or specific injuries, they have been granted bail. There are, however, cases to the contrary where mere presence of some of the accused persons has been held to be sufficient for refusing them bail on the ground that they, too, were vicariously liable for the offence in question.

6. I have considered these contentions carefully and find that the main difference in the two kind of cases referred to above, is that in the first kind of cases the Court feels, on reasonable grounds, that the accused have been falsely involved in the cases and the fact that although they have been mention ed as having been present, yet they have not been ascribed any positive role, creates a serious suspicion with regard to their very presence at the spot, and it is for this reason that they are granted bail. While in some cases, from the material available on the record, the Court does not comes to a conclusion that there is any doubt as to their presence at the spot along with the assailants in circumstances which show that they shared the intention of their co-accused who had actually caused the injuries. In such cases the mere presence of these accused at the spot would certainly make them vicariously liable, for the acts of their co-accused. There is, therefore, no conflict in the two kinds of authorities, mentioned above.

In the present cases for the reasons apparent from the contents of the two F. I. Ra. there appear to be reasonable grounds for believing that the petitioners may not have been present at the spot and have probably been falsely involved due to enmity. In other words, there are reasonable grounds for believing that they are not guilty of an offence punishable with death or imprisonment for life. They are, therefore, granted bail in the sum of Rs. 20,000 (Rupees twenty thousand) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Sheikhupura.

K. B. A. Petition accepted.