Above titled revision petitions have been directed against the order of Additional District Court of Criminal Jurisdiction Muzaffarabad dated 15.12.2007, whereby the petitioners were refused bail.
2. Brief facts leading to the background of the revision petitions are that a case under Sections 302, 147, 148, 149, A.P.0 was registered at Police Station, Muzaffarabad on the complaint of Syed Ishtiaq Hussain Jafri. It was reported that on 04-04-2007 at 10.45, a.m., the complainant came to know that his son Touqeer Abbas was brought injured to C.M.H Muzaffarabad. Upon this he came there. Syed Faryad Hussain Shah informed him that about 10.30 a.m. when Toqeer Abbas was going towards Pilot High School to join Tuition classes was attracted to hue and cry and he entered the gate of Azad Jammu & Kashmir University where he was studying there as he arrived near the stairs of the ground, Israr Shah alias Sari Shah with the help of Malick Waseem, Malick Irfan, Adeel Sharif, Saim Hussain and Bazil Awan opened attack and caused injury with dagger resulting into his death. The occurrence was witnessed by Faryad Hussain Shah, Tehsil Abbas and Syed Hussnain Ali. It was further alleged that 5/6 unknown accused persons were also involved in the occurrence. Motive was an altercation which took place prior to the occurrence between members of Imamia Students Organization and National Students Federation.
3. After registration of the case, the accused petitioners were arrested. They applied for bail before the trial Court which was refused through the impugned order, hence these revision petitions.
4. Learned counsel for the petitioners argued that the occurrence was not premeditated. A sudden fight took place between two groups of students and there was nothing on record indicating that the petitioners committed the offence in furtherance of common intention. At the time of lodging FIR the complainant nominated Israr Ahmed alias Sari Shah as principal offender but during investigation he was found innocent and prosecution alleged Adeel Shah for causing fatal injuries at the person of the deceased which shows that the true facts were suppressed and a story was concocted to rope the petitioners in a false accusation. The material on record was not sufficient to establish a prima facie case. He further requested that Muhammad Naeem accused petitioner was a minor at the time of commission of offence and his case was covered by provisos of sub- section (1) of Section 497, Cr.P.C. The trial Court failed to appreciate, that the prosecution story was highly doubtful and the case was that of further inquiry, therefore, by accepting the revision petition, the impugned order may be set aside and the bail be granted to the petitioners.
5. On the other hand, it was argued that the occurrence took place during broad-day-light. The petitioners were nominated in promptly lodged FIR. The prosecution version was supported by injured eye-witnesses and was corroborated by recovery of weapons used during the occurrence, post mortem report and medico legal reports pertaining to the injured persons. Motive was also proved and it was established that the accused petitioners committed the offence in furtherance of common intention, thus they being equally responsible for committing the offence of murder were rightly refused bail by the trial Court. A prima facie case existed against them and it cannot be said that the 'Court below committed any error while refusing bail. The impugned order being correct and in accordance with law needs no interference, therefore, the revision petitions may be dismissed.
6. Since both the revision petitions arise out of the same order of the trial Court, therefore, these shall be disposed off through this common order.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. The prosecution case was that the accused petitioners were beating Muhammad Sadheer Mughal while Touqeer Abbas came there, upon which they started following him. The victim tried to escape but he was caught by the accused petitioners. Malick Waseem accused petitioner gave a stick blow at his head while Adeel Shah caused injury at his chest with dagger. Thus, it implies that the two aforesaid accused persons, were ascribed specific role of causing injuries while the others were alleged for sharing common intention. It may be stated here that allegation of common intention must be scrutinized very carefully. Some evidence indicating prior meeting of minds leading to premeditation or some act done by an accused person showing his involvement in the occurrence is required to establish that the offence was committed in furtherance of common intention. In the present case no evidence showing that an unlawful assembly was formed to commit the offence or any proof indicating that the accused petitioners were aware of the fact that Touqeer Abbas was coming to the place of occurrence was brought on record, the allegation of sharing common intention was not supported by any independent source and in this view of the matter, I am of the opinion that individual role played by each of the accused persons in the occurrence was to be considered for disposal of the bail application.
9. As said earlier that the eye-witnesses alleged Malick Waseem for causing injuries with stick at the person of the deceased, the allegation was supported by the post-mortem report and recovery of weapon of offence, therefore, prima facie he was connected with the offence and was not entitled to the concession of bail, however, rest of the accused petitioners were not ascribed any specific role and prima facie the case against them was covered by sub-section (2) of Section 497, Cr.P.C.
10.Upshot of the above discussion is that Muhammad Naeem, Muhammad Irfan, Adeel Sharif, Saim Shah and Bazal Awan are admitted to bail. They shall be released from custody on furnishing bail bonds in sum of Rs,5,00,000/- each and personal bonds in the like amount to the satisfaction of any Magistrate 1st Class, Muzaffarabad while the revision petition filed by Malick Waseem is hereby dismissed.