MUHAMMAD AJMAL KHAN Versus THE STATE

ORDER

The prosecution case in brief is that Akram, Muhammad Arif, Mumtaz (accused) and others were playing Volleyball in the ground where on account of some dispute the complainant party and the accused had a quarrel. On hearing this, the complainant Manzoor alongwith Mumtaz deceased, Riaz and Aslam P.Ws. went to the spot and asked Mumtaz and Nisar accused not to continue with the dispute. At this, Mumtaz and Nisar accused started abusing Manzoor complainant on account of which Manzoor complainant and his companions gave stick blows to them. They were separated by the persons present there. The complainant Manzoor and his companions were still in the ground when Mumtaz accused armed with knife, Nisar with gun, Zulfiqar with stick and Ajmal (petitioner) armed with knife came there. They challenged. Nisar tried to load his gun but before he could do so, Mumtaz deceased snatched the gun from him. At this, Nisar alias Shughali exhorted his companions to attack Mumtaz deceased. Mumtaz accused gave knife blow on the abdomen of Mumtaz deceased who fell down. Mumtaz accused gave another blow on the chest of Mumtaz. Manzoor complainant tried to save his son Mumtaz and lay himself on his body whereafter Nisar alias Shughali accused took the knife from one Riaz and caused injuries on his back. Mumtaz accused thereafter gave blow to Manzoor P.W. He was followed by Nisar accused who gave another blow to Manzoor complainant. Zulfiqar gave stick blow to Manzoor. Riaz, another son of Manzoor came forward to rescue his father and brother but was given knife blow by Ajmal accused (petitioner) on his arm. Zulfiqar accused gave stick blow to Riaz P.W. Mumtaz died at the spot as a result of injuries caused to him. The petitioner and his co‑accused were arrested whereafter he moved an application for his bail but was unsuccessful before the learned Sessions Judge, Sargodha. Hence this petition.

2. It is contended on behalf of Muhammad Ajmal petitioner that no injury to the deceased was attributed to him; that the only allegation against Ajmal was that he caused one simple injury on the arm of Riaz P.W. and that from the facts and circumstance of the case it cannot be said that the petitioner shared common intention to murder Mumtaz deceased with his co‑accused. In support of this, learned counsel placed reliance on Muhammad Akbar v. The State 1978 S C M R 7.

3. Learned counsel for the State and the complainant vehemently opposed this petition. It was contended by the learned counsel that all the accused had a common motive; that they all came armed at the spot and that they in furtherance of their common intention caused the death of Mumtaz and caused injuries to Manzoor and Riaz P.Ws. It was contended by the learned counsel for the complainant that the case of Muhammad Akbar relied upon by the learned counsel for the petitioner was not followed in subsequent cases by the Supreme Court. In support of this argument, he placed reliance on Nazar Muhammad v. The State P L D 1978 S C 236 and Munawar v. The State 1981 S C M R 1092. It was, therefore, argued that the petitioner is not entitled to bail.

4. I have considered the above arguments of the learned counsel. The case of Muhammad Akbar was considered and distinguished in the subsequent cases referred to above. In the case of Nazar Muhammad, it was held that it was wholly immaterial if another victim of assault sustained only a simple injury during the occurrence in which another person was murdered if from the facts and circumstances of the case it is clear that all the accused shared common intention. It was held in the case of Nazar Muhammad that the Courts have to base their findings on the material placed before them such as the F.I.R. and the statements of the witnesses recorded by the police and the medical evidence etc. Similarly, in the case of Munawar, it was held that it was not possible to hold that the petitioner did not share common intention with his co‑accused when he and his companions came armed with deadly weapons and in pursuance of their common intention caused injuries.

4‑A. I am of the view that the case of Muhammad Akbar is not attracted to the facts and circumstances of the present case. Ajmal petitioner had a common motive with his co‑accused. He came armed with deadly weapon alongwith his co‑accused, and attacked the complainant party in the Volleyball ground. As a result of the said attack Mumtaz died while Manzoor and Riaz P.Ws. received injuries. This fact is supported by the medical evidence as well. Prima facie, therefore, I am of the view that Ajmal petitioner shared common intention with his co‑accused to cause death of Mumtaz and to make murderous assault on the two prosecution witnesses. In this view of the matter, I find no merit in this petition, which is accordingly dismissed.

M. Y. H. ????????????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.