RASHEED AHMED Versus ABDUL WADOOD PATEL
1. On 14-11-1990 at about 1-00 a.m. (night) a report had been lodged al City Police Station, Hyderabad by complainant Rasheed Ahmed which was recorded under section 307/34, P.P.C. vide Crime No. 533/91, in which it was alleged that complainant has got a Fry Hotel known as Nazir Kabab adjacent to Rahat Cinema. His brother Aziz, Mehmood, Ashfaq and Abid also do work there. At about 11-45 p.m. Nadim alias Kaka, Abdul Wadood and two other boys whom he will identify, if shown, came to his hotel, Nadim alias Kaka asked his brother Aziz to supply fried chicken free of cost, his brother Aziz refused and in the result Nadim alias Kaka took out a pistol from the fold -of his Shalwar and straightaway fired at his brother Aziz, who sustained injuries in the stomach and fell down. Respondent Abdul Wadood and others who were accompanying him also fired in the air with T.T. pistol and took out cash of the hotel and ran away. The investigation in this case was made by the Police. Injured Abdul Aziz was referred to Agha Khan Hospital at Karachi, from L.M.C.H. Hyderabad, where he remained as indoor patient and expired. The police converted the case to the offence punishable under section 302, P.P.C.
2. After usual investigation, the charge-sheet was submitted before the Court showing the respondent (Abdul Wadood) to be an absconder. The respondent was declared as an absconder by the Court. He is said to have been arrested from the Central Jail Hyderabad where he was already confined in connection with some other case.
3. An application for bail for the respondent had been moved before the learned IVth Additional Sessions Judge, Hyderabad who by his order dated 1-12-1992 granted bail to respondent Abdul Wadood. Against this order the applicant has come before this Court for cancellation of bail granted to the respondent Abdul Wadood.
4. Learned counsel for the applicant has submitted that bail to respondent had been granted, mainly on the ground, that no overt act had been attributed to him inasmuch as, that he caused no injury to the deceased as he is said to have run away firing in the air. Learned trial Court in granting the bail to the respondent Abdul Wadood relied on an authority of this Court being Criminal Bail Application No.231 of 1992 in which matter the bail has been allowed to the accused who had not used his weapon in the commission of the offence of the murder. Learned counsel for the applicant submitted that although respondent Abdul Wadood is not said to have fired on the deceased but still the offence had been committed with the consent of all the culprits who had come at the hotel. He referred to the allegation mentioned in the F.I.R. that respondent had been specifically attributed the role of robbing cash of the hotel after Nadim alias Kaka had fired on the
5. Learned counsel for the applicant referred to Munawar v. The State 1981 S C M R 1092 where it has been held that:
6. "We are in respectful agreement with the observations produced above and consider that it is entirely erroneous to think that in the case of Muhammad Akbar and others this Court laid down any rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at the time of considering the question of bail. The question is essentially one which has to be determined on the basis of the facts of each case, available on the record at the time the question of bail comes up for consideration. If on the allegation appearing on the record the conditions set out in the provisions of law spelling out constructive liability are made out, then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life."
7. Learned counsel for the applicant has also referred to Chiragh Din and others v. The State P L D 1967 SC 340 in which it is held that:
8. "The case in P L D 1966 SC 658 is not to be read as lying down that a lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. That question must be decided by the trial Court on an appreciation of all the facts, including the degree of interest in crime possessed by the person who shouted the lalkara, and the part he played in the background of the affair.
9. The application of evidence and the drawing of conclusions therefrom relation to all the circumstances is the function exclusively of the trial Court. It cannot be anticipated by a superior Court dealing with an ancillary matter, e.g. the grant of bail, pending trial.
10. It is not possible, without a full appreciation of the evidence relating to the background of a crime and its actual commission, to say that proof of a person shouting a lalkara, is not enough to constitute a reasonable ground for thinking that he has been guilty of abetment of such crime.
11. There are circumstances in which mere presence at the scene of the crime is a sufficient overt act to support a conviction, by the application of section 114, P.P.C. Shouting of a Lalkara may, in such circumstances, have effect as a further overt act of abetment."
12. As to allegation of abscondance of the respondent learned counsel for the respondent has referred to 1984 S C M R 914, 1991 S C M R 357 and 1992 S C M R 1418. An accused person cannot be refused bail simply for the reason that he had remained absconder if he explains reason for his remaining at large and his case otherwise appears to be fit for releasing him on bail.
13. Learned counsel appearing for respondent Abdul Wadood has submitted that in the charge-sheet there is no charge for robbery of cash against the respondent and, as such, he is entitled to bail. According to him, for this reason, respondent Abdul Wadood had rightly been allowed bail by the trial Court. In support of his contention he relied on Iqbal Masih and another v. The State 1984 M L D 1393. The authority referred to by the learned counsel has no bearing on the facts of this case as in that case there was no allegation against the application in the F.I.R. for having participated in commission of offence "except that he disclosed to accused party to see that complainant's helper did not escape".
14. Keeping in view of the above-referred decisions of the Supreme Court of Pakistan I am of the view that although respondent is not said to have caused any injury to the deceased yet there is allegation against him, in the F.I.R., that he was one of those persons who had not only fired in the air after deceased had sustained injuries at the hands of Nadim alias Kaka yet he also took away the cash from the hotel. Since there is specific allegation against him for the commission of the offence of robbery and firing in the air, he cannot be said to have not committed any overt act at the time of the alleged offence and that he did not share the common intention with the other culprits.
15. In view of what I have said above, I am of the view that the triad Court was not justified in granting bail to the respondent Abdul Wadood. I, therefore, accept the prayer of the applicant Rasheed Ahmed and cancel bail B of the respondent Abdul Wadood. If the respondent Abdul Wadood has already been released on bail, the trial Court is directed to issue N.B.W. for his arrest.
16. N.H.Q./R-25/K Bail cancelled.