USMAN vs THE STATE

ORDER

1. ' The applicant Usman, alongwith two other persons, has been indicted in Crime No,1 of 2000, Police Station Ghouspur for offence under sections 302, 337-H(2) and 34, P.P.C.

2. ' According to the prosecution case on 2-1-2000 at 19-30 hours when the complainant alongwith his nephew Naimtullah, son Muhammad Haneef and relative Abdul Rauf were standing in common street near the shop of Haji Baz Muhammad Mirani. The applicant armed with Klashnikov alongwith Shahban and Aarab alias Baboo both armed with T.T. Pistol reached there, accused Shahban challenged Naimtullah that his brother Niaz Ahmed had murdered his brother Muhammad Ramzan and, therefore, he would take revenge. After this Shahban put his pistol on the chest of Naimtullah and fired, which hit him. Aarab alias Baboo also fired at Naimtullah which hit him on his right hand thumb. Due to firing and cries of complainant party when the villagers came running and tried to apprehend culprits, Usman fired with his Klashnikov and under the cover of such firing the accused persons managed their escape from the place of occurrence.

3. ' Mr. Muhammad Iqbal Mahar learned counsel for the applicant contended that the applicant is in custody since 18-1-2000 but no recovery of any crime weapon has been effected from him.

4. According to the F.I.R., the only role assigned to the applicant is that he indulged in firing in the air and no role of causing any injury to the deceased or to any other person from the complainant party has been assigned to him. Learned counsel further contended that according to the prosecution case applicant was armed with K.K. But still he did not cause injury to any one and, therefore, it is yet to be seen whether the anplicant was sharing common intention with other accused persons, who have been assigned specific role of causing injuries to deceased Naimtullah. Learned counsel, therefore, submitted that the case of applicant needs further enquiry and he is entitled for the benefit of bail. In support of his contentions learned counsel placed his reliance on the following cases:--

(1) Rehmat Ali v. The State 1987 PCr.LJ 1018, (2) Muhammad Sadiq and another v. The State 1996 SCM R 1654, (3) Muhammad v. The State 1998 SCM R 454 and (4) Shafi Muhammad v. The State 1999 PCr.LJ 890.

5. ' In the case of Rehmat Ali, bail was allowed to accused person charged for an offence under section 302 on the ground that though he was present at the spot duly armed with gun but he fired in the air after the occurrence was already over. In the case of Muhammad Siddiq, bail was allowed to accused persons who kept on firing and raising Lalkara at the time of occurrence but did not cause any injury to the complainant party. In the case of Muhammad, bail was allowed by the Honourable Supreme Court to accused who was involved in an offence under sections 302, 148 and 149, on the ground that the allegation against him was that of ineffective firing. In the case of Shafi Muhammad a Division Bench of this Court extended benefit of bail to an accused against whom the allegation was that he was firing in the air.

6. ' Mr. Awan Rehmatullah Nadeem learned counsel for the complainant vehemently opposed this bail application and contended that the applicant accompanied the other two accused persons at the place of occurrence duly armed with klashnikov and has played a specific role of firing with his K.K. In the air which assertion of the complainant party is proved from the recovery of 15 empties of K.K. From the place of occurrence and in the given circumstances it is clear that the applicant joined other two accused persons with prior planning and common intention and in such circumstances he is not entitled for grant of bail. In support of his contentions the learned counsel placed his reliance on the cases of Dhani Bux and others v. The State 1989 SCM R 239 and Iqbal v.

7. The State 1982 SCM R 84.

8. ' In the case of Dhani Bux (supra), bail was refused to an accused person who was fully implicated by the prosecution witnesses and a case of common intention to kill deceased person was made out against him. In the case of Iqbal (supra), the accused, who was allegedly armed with stick was refused bail though even the injury with blunt weapon attributed to him was not found on the body of the deceased, as from the contents of the F.I.R. It appeared that he acted in pre-concerted manner with the other accused persons.

9. ' Mr. Rasheed Ahmed Qureshi learned Assistant Advocate-General also opposed the bail application and contended that at this stage there is no reasonable explanation on record as to why the applicant accompanied the other two accused persons at the place of occurrence duly armed with K.K. And, thus, it is clear that he was sharing common intention and has reached there with set plan to help other accused for causing murder of Naimtullah. In such circumstances when the applicant has been charged for offence which falls within the prohibitory clause of section 497(1), Cr.P.C. No case for grant of bail is made out.

10. I have carefully considered the arguments advanced before me and perused the material placed on record. The applicant has been nominated in a promptly lodged F.I.R. According to the case of prosecution, which is duly supported by 161 and 164, Cr.P.C. Statements of eye-witnesses of the incident, the applicant reached at the place of occurrence alongwith other accused persons, he was armed with K.K. And used his weapon to help other accused to escape after commission of the crime. Such act of firing with K.K. Attributed to the applicant is duly corroborated from the Mashimama of place of occurrence which shows recovery of 15 empties of K.K. Apparently there is also no motive of false implication of applicant in the present crime.

11. ' It may be observed that in the recent times a trend of organized and pre-planned crimes has developed in the society where before commission of crime different roles and duties are assigned amongst criminals participating in the crime to ensure required results with full assurance. In this change scenario the Courts cannot sit like silent spectator, oblivious of all such developments.

12. Such trend of organised crimes can only be discouraged by taking a more watchful and careful view of the matter even at bail stage.

13. ' Reverting to the facts and circumstances of the instant case, it will be seen that the manner in which applicant and other accused persons duly armed with weapons reached at the place of occurrence, targeted Naimtullah deceased by putting T.T. Pistol on his chest, assigned their justification for committing such murder makes it prima facie clear that offence was committed in a organised and pre-planned manner. Thus, at this stage from the material available on record there are reasonable grounds to believe that the applicant played his pre-determined role and he was sharing common intention with other accused in the commission of a crime which falls within the prohibitory clause of section 497(1), Cr.P.C. Disentitling the applicant for the concession of bail.

14. Coming to the case-law referred by the learned counsel, it may be observed that in criminal cases, specially in bail matters, there is no universal rule of application which can be pressed in to service in all cases, and thus, passing of an appropriate order would necessarily depend on the facts and circumstances of each case. It will be seen that in the facts and circumstances of the present case, as discussed above, the cases referred by the learned counsel for the applicant have no bearing.

15. ' For the foregoing reasons this bail application is dismissed.

16. ' Needless to mention the observations made in this order are of tentative nature and, therefore, the trial Court while proceeding with the case shall not be influenced by such observations.