MUHAMMAD RAFIQ Versus STATE

ORDER

Muhammad Rafiq petitioner who alongwith co-accused Siddiq is involved in a case under section 302/34, P. P. C., has moved this petition for bail.

The prosecution version is that both the accused used to take Charas in a graveyard near the house of Sajjad Hussain deceased who used to dissuade them from doing so. About one and a half months prior to the occurrence there was an altercation between the parties on that score in which both the accused threatened the deceased with dire consequences. On 21st December, 1981 at about evening time when Sajjad Hussain was coming towards his house, both the accused raised lalkara and then grappled with him. The petitioner caught hold of him from the arms while his co-accused struck him with a brick on the left temporal region as a result of which he later on died in the hospital on the same day.

2. The learned counsel for the petitioner contends that the F. I. R. was lodged with a delay of 8/9 hours, no injury to the deceased has been attributed to the petitioner and the only allegation against him is that he joined his co-accused in raising lalkara and caught hold of the deceased from the arms. It is further submitted that no deadly weapon was used and the principle of vicarious liability is not attracted to the facts of this case. The learned counsel for the complainant and the State, on the other hand, submit that the petitioner not only raised a lalkara and grappled with the deceased but also caught hold of him from the arms and thus facilitated the commission of murder, therefore, section 34 of the Pakistan Penal Code is prima facie attracted and no ground for bail is made out.

3. I have gone through the relevant material. Both the accused persons are shown to have a motive against the deceased as he used to dissuade them from taking Charas near his house resulting in a quarrel one and a half months prior to the occurrence during which they threatened him with dire consequences. The complainant's version that both the accused raised lalkara, grappled with the deceased and the petitioner caught hold of him from the arms before his co-accused struck him with the brick, is supported by two eye-witnesses. There was only one injury on the dead body in the nature of a contused swelling 6 cm. x 4 cm. on the left temporal region, extending downwards in front of left ear. There is substance in the contention of the learned counsel for the complainant that if the arms of the deceased had been free he must have endeavoured to ward off the blow and was likely to suffer injury on the hands during the process. The allegations prima facie show that both the accused acted in a pre-concert. In the circumstances, I do not consider it a fit case for bail. The petition is dismissed.

Petition dismissed