Haji Rehmat Ullah and his son Muhammad Hanif who have been along with two others, namely Muhammad Sharif who is also son of Haji Rehmatullah and Shaukat accused of the offences of murder and attempted murder under section 302/307/34, P. P. C. Allegedly committed by them in furtherance of a common intention, have applled for grant of bail.
2. Shortly put, the parties are residents of Chat No. 34, village Mundheke within the jurisdiction of Police Station, Pattoki, District Kasur. The incident resulting in death of Muhammad Rashid a real brother of Khushi Muhammad complainant in the case and fire-arm injury to Mst. Sharifan mother of the complainant took place in the said village at 4-00 P.m. On 2nd of November 1977. The offence as reported within an hour at Police Station, Pattoki distant two miles from the site of occurrence.
The report alleges that a nephew of the complainant had passed by the house of the accused with a trolly loaded with bricks tagged to a truck which was objected to by Haji Rehmatullah and his sons Muhammad Hanif petitioner (2) and Muhammad Sharif. This ensued exchange of abuse and a scuffle between the parties. Muhammad Rashid deceased and his mother Mst. Sharifan rushed to the site. Several persons in the village interceded and e parties were separated. Muhammad Hanif ran inside his house and returned with a single barrel 12 bore gun in his hand with which he fired at Mst. Sharifan hitting her in the face. Muhammad Hanif was pushed to his house by the persons who had gathered at the site. Mst. Sharifan was escorted to her house. Meanwhile, Muhammad Hanif and Shaukat both armed with .12 bore guns, Sharif and Haji Rehmatullah with sotas in their hands emerged at the chowk of the village. Sharif snatched the gun from Muhammad Hanif and fired at Rashid deceased felling him on the ground. Shaukat also fired at the deceased as a result of which he died instantaneously. Thereafter, the accused ran away.
3. Haji Rehmatullah who was attributed lalkara was admitted to bail by means of order-dated 20- 5-1978. This leaves us with the question of grant or otherwise of bail to Muhammad Hanif petitioner
(2) who had allegedly fired at Mst. Sharifan mother of the complainant. On examination by the doctor she was found to have seven injuries on her 6aused by fire-arm scattered in the forehead and the - face all around. The injuries were declared simple in nature. Pausing, it may be stated here that Muhammad Hanif petitioner. Muhammad Sharif and their mother Mst: Fateh Bibi have a few injuries on them. Muhammad Hanif had a lacerated wound, in the head and abrasion on the back of left elbow. Muhammad Sharif had also a lacerated wound in the head and a contusion wound on the left upper arm. Mst. Fateh Bibi had a single lacerated wound on the back of her right hand. Mst. Khurshid Bibi daughter of Shafi Muhammad who is not connected with the accused had two injuries (wounds of exit and entry) in the chest caused with fire-arm and a couple of abrasions on the left shoulder. Injuries caused with fire-arm were declared grievous in nature.
4. Lengthy arguments were addressed on both sides. Learned counsel for the petitioners contended that the injuries on the side of the accused were suppressed by the complainant side. A presumption should be raised that they were the aggressor and the accused were the victim of aggression, or the parties had engaged themselves in a free fight. The accused will be liable for their individual acts. Rule of vicarious liability, could not be invoked in such cases. There were counter-versions of the incident. The case against Muhammad Hanif petitioner who had not caused any injury to the deceased was that of further inquiry within the meaning of subsection (2) of section 497, Cr. P. C. A large number of authorities were cited in support of the above contentions. Eventually, learned counsel for the petitioner relied mainly on the following precedent cases :-
(1) Ghulam Nabi and others v. The State 1976 P Cr. L J 1198.
(ii) Mahla etc. v. The State 1976 P Cr. L J 1059.
(iii) Yaqoob v. The State 1977 P Cr. L J 519.
(iv) Ghulam Nabi etc. v. The State 1977 P Cr. L J 460.
(v) Ghulam Muhammad and another v. The State 1977 P Cr. L J 458.
(vi) Fazal Hussain and others v, The State 1976 SCMR 124 and finally
(vii) Fazal Muhammad v. All Ahmad and others 1976 SCMR 391.
In the first-mentioned case, the accused in case of murder who were not attributed injury to the deceased and were responsible for causing simple injuries to the witnesses were admitted to bail mostly on the ground that "a number of injuries on the accused persons lend support to the contention that it was not a one-sided affair. The injuries attributed to the petitioners are simple in nature". In the next case also the accused who did not cause any injury to the deceased and had dealt injuries to the witnesses which were simple in nature were admitted to bail. It may be stated here that the- view taken in this case was affirmed by Supreme Court in a recent case Muhammad Akbar and others v. The State (1978 SCMR 7). It was held by their Lordships that "however, the case of Fateh Khan and Ahmad Nawaz petitioners (who had not caused injuries to the deceased) was distinguishable and the order of learned Additional Sessions Judge allowing them bail was not liable to interference". In the case at Serial No. (iii) above the accused had allegedly caused injuries to Anwar P. W. Munshi father of Anwar came to intercede when Habib accused gave him a blow with the blunt side of hatchet as a result of which he fell unconscious and died soon after that.
Yaqoob petitioner before the Court was admitted to bail fo---the reasons stated in the concluding paragraph of the judgment which are that the injury sustained by Yaqoob on the head by a blunt weapon and the other sustained by Habib with a sharp-edged, weapon which were found grievous had remained unexplained. The deceased met his death because of the blow given to him by Habib, the co-accused of the petitioner. No overt act as far as Munshi was concerned was ascribed to Yaqoob petitioner. The vicarious liability of the petitioner shall be decided after recording evidence but on' the state of facts as they are the petitioner was entitled to an order of grant of bail. In the case at Serial No. (iv) the contention that the prosecution had suppressed the material fact that three persons from the side of the accused had also suffered as many as 24 injuries during the incident, one of which was found to be grievous was Evalued in favour of the accused.
The petitioners in that case who did not cause any injury to the deceased were prima facie held responsible for their individual acts and admitted to bail. In Ghulam Muhammad's case (Serial No.
(v) it was contended on behalf of petitioners that they were in possession of the disputed land at the time of occurrence and that the complainant side forcibly wanted to take possession of the said land as a result of which free fight took place between the patties. It was held that since the complainant party was the aggressor party, the accused party including the petitioners acted in the exercise of their right of self defence and (they caused injuries to the members of the complainant Party after the members of the accused party had sustained injuries. The petitioners were admitted to bail because injuries on the side of the accused had not been mentioned in the first information report. In Fazal Hussain case cross-cases were pending between the parties. On the side of the petitioners before their Lordships, first information report regarding the death of one Said Rasool was lodged. The cases against them was registered next day when the Investigating officer arrived at the spot in connection with the above-said earlier first information report. The petitioners were allowed bail for the reason that the information against them was considerably delayed and there had been fatal casualty on their side whereas on the opposite side no unfortunate consequences had ensued. The question as to which party was aggressor had still to be determined. In the last case (Serial No. (vii)) the accused were released on bail by a learned Single Judge of this Court for prima facie, the probability that the counter-version had also some truth in it, and that in the counter-case process had been served on the complainant Party. Some of the accused had received injuries including grievous injury on the head of one of them.
Application for cancellation of bail was rejected by their Lordships of the Supreme Court with the observation that this was not a fit case to interfere with the order of the High Court.
5. The precedent cases proceed on their peculiar facts. The facts of two criminal cases are never alike. A decided case cannot apply to the cases unless there is a reasonable similarity between the facts of two cases. Their Lordships of Supreme Court have in Gul Ahmad v. Masan Khan (1977SCMR27struck a note of caution against indiscriminate invocation of authorities in cases for grant of bail. Precisely, their Lordships were delivered of the following observations: "Great care and caution is needed in the invocation of the authorities of this Court which by and large proceed on the peculiar facts of each case. Having regard to the vast variety and wide variance in the circumstances of cases and the indiscriminate application of a ruling given in one case to the facts of another, their Lordships of Privy Council felt the necessity of observing in Louis Edouard Lanier v. The King (LR 1914AC221) that no rule can be laid down which would not necessarily be subject to future qualification, and an attempt to formulate any such rule might therefore prove misleading. This note of caution was reiterated in Dennis Romain v. Attorney-General for Jersey (AIR 1936 P C 160). Both these authorities were pointedly referred in this Court's elaborate judgment in Noora's case (PLD 1973 SC 469).
6. In murder cases normal rule is refusal to grant bail if the appear reasonable grounds for believing that the accused was guilty o charge. To determine if there existed reasonable grounds for believing, attention must be confined to the allegations in the first information report, medical report, statements of the witnesses before the police and recoveries if any. It is not at all permissible to enter into question of evaluating the respective pleas of the parties at a premature stage when there is no evidence available on the record. Needless to say, that there are reasonable grounds for believing that Muhammad Hanif petitioner was guilty of the charge inasmuch as the evidence against him if allowed to stand unrebutted and unchallenged will tend to connect him with the crime. Assuming, that there had been a free-fight between the parties and each accused will be guilty of individual act then even Muhammad Hanif petitioner does no stand to gain materially. He had allegedly fired at Mst. Sharifan causing her injuries in the vital part of the body (forehead, face). An argument was sought to be raised on the side of the petitioner that the injuries suffered by Mst. Sharifan had been declared simple. The petitioner could not, therefore, be saddled with the intention or knowledge as envisaged in section 307, P. P. C. Intention is internal state of mind which has to be inferred from external act viz. The part played by the accused. I have to abstain from recording detailed comments on this argument which was raised with a degree of earnestness. Suffice to say that "hurt" as used in section 307, P. P. C. Will include "simple hurt" as well as "grievous hurt". It was laid down by their Lordships of Supreme Court in Muhammad Aslam and others v. The State (PLD 1967 SC 539) that High Court is not competent to make an assessment of the medical evidence and form an opinion whether the offence committed by the accused fell under section 302 or 325, P. P. C. It was also held that the High Court is not to examine merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused had been guilty. Otherwise, any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started. The rule laid down in this judgment was affirmed in a subsequent case in Gulzar Hassan Shah v. Ghulam Murtaza (PLD 1970 SC 335).
7. Apparently, prosecution had not suppressed injuries on the side of the accused. It was stated in the first information report that nephew of the complainant had a scuffle and grappling etc. With the accused. Mst. Khurshid Bibi is not related to the deceased in any way. The question if she had been injured by a stray pellet fired by accused or the Complainant side had fired at her will be resolved at the trial. It is not a cast iron rule that in cross-cases, the accused charged with the offence o murder who had a few minor injuries which he may have sustained during the scuffle, must always be released on bail.
8. In the result, I hold that Muhammad Hanif fails to show much less established convincingly that case against him was of further inquiry. He cannot be allowed bail even if it were conceded that he was not liable vicariously for the murder of Muhammad Rashid who had met his death at the hands of Muhammad Sharif and Shaukat Ali. Ex facie, Muhammad Hanif was also guilty of the offence under section 307, Pakistan Penal Code for having fired effectively at Mst. Sharifan which is punishable, with life imprisonment. The case would still fall within the ambit o subsection (1) of section 497, Criminal Procedure Code which places an embargo on otherwise wide powers of Court for grant of bail to accused in such cases. Application rejected.