' SYED H'USSAIN MAZHAR KALEEM, J.---Above titled revision petitions have been directed against the .Orders of Additional District Court of Criminal Jurisdiction, Mirpur dated 15-4-2013 and 31-12-2012, whereby Mobeen Liaquat petitioner was refused bail while the same was allowed to Nasir Idrees and Shamila Ghazanfar.
2. Brief facts forming background of the revision petition are that a case under sections 302, 34, 147, 148, 149, A.P.C. And 13/20/65 of the Arms Act was registered at Police Station, Afzalpur on the complaint of Akbar Ali. It was reported that the complainant was resident of Bahrwal Tehsil Kharian District Gujrat. His brother-in-law Ghulam Subhani a resident of Samahni District Bhimber had relations with Mst. Shamayla. On 2-10-2012, he left home with his friends Muhammad Tahir and Muhammad Asghar for Khadi-Sharif. Later on Mst. Shamayla resident of Turnal District Mirpur called him and invited at her house. Upon this he left Khadi-Sharif for her residence. After his arrival there, in order to execute the pre-arranged plan she committed his murder with the help and connivance of other 4/5 unknown persons.
3. During investigation, the accused-petitioner and non-petitioners were found guilty of the offence of murder and were arrested by the Police. They applied for bail before the Court below which was refused to the extent of Mobeen Liaquat accused-petitioner while the same was allowed to Nasir Idress and Shamayala Ghazanfar non-petitioners through the impugned orders, hence these revision petitions.
4. Learned counsel for the accused-petitioner and non-petitioners argued that the occurrence was not witnessed by anybody, the accused were not nominated in the F.I.R., they were not alleged for causing injury to the deceased and were roped in the case on the ground of mere suspicion.
Allegation of taking the victim on his motorcycle from the house of Shamayla to the place of occurrence against Mobeen Liaquat petitioner was doubtful and the matter was that of further probe. Presence of the Nasir Idrees and Shamayla Ghazanfar non-petitioners at the place of occurrence at relevant time was not established, thus they were rightly allowed bail by the trial Court, however, a serious illegality was committed while refusing the same to Mobeen Liaquat accused-petitioner. It was clear from the record that the occurrence was not premeditated. There was no evidence indicating that the offence was committed in the prosecution of common object, therefore, by accepting the revision petition and setting aside the impugned order, the petitioner may be released on bail while the revision petition filed against the non-petitioners by the complainant may please be dismissed.
5. On the other side, it was argued that though the occurrence was unseen but there was strong circumstantial evidence connecting the accused-petitioner and the non-petitioners with the alleged offences. The offence was pre-planned. On the fateful day when the deceased went to meet Shamayla from Khadi-Sharif where the accused petitioner and Muhammad Afzaal abducted him. They took him at the place of occurrence and committed his murder. Presence of the accused petitioner and non-petitioners at the place of spot at relevant time was established. Mere fact that the accused petitioner was not alleged for causing injury to the deceased was not sufficient to bring his case within the ambits of further inquiry. All the accused hatched a conspiracy and committed the crime in the prosecution of common object. They were connected with the offence punishable with death, thus the bail was rightly refused to Mobeen Liaquat accused petitioner, however, the trial Court committed a serious illegality while allowing the same to Nasir Idrees and Shamayla Ghazanfar non-petitioners, therefore, the revision petition filed by the accused petitioner may be dismissed and by accepting that of filed by the complainant, bail allowed to, Nasir Idrees and Shamayla Ghazanfar non-petitioners may please be cancelled.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. Since both the revision petitions arise out the same case, therefore, these shall be disposed of through this common order.
8. The prosecution claimed that the deceased, accused petitioner and Nasir Idrees non-petitioners were close friends. On the fateful day the victim along with P.Ws. Muhammad Tahir and Muhammad Asghar came to Khadi-Sharif where all of them assembled. Later on Ghulam Subhani went to meet Mst. Shamyala non-petitioner at her residence situated in Turnal. At about 4.00, some body informed the Police that an injured person was present at Chaprian Gujran Patrol Pump, upon which S.H.0 Police Station, Afzalpur came there. The victim told them his name and address, thereafter they took him to District Head Quarter Hospital, Mipur where he succumbed to the injuries.
9. It is pertinent to note here that the deceased, prosecution witnesses and the alleged offenders assembled in Khadi-Sharif. After sometime he went alone to meet Mst. Shamayla at her residence.
Later on the victim made a telephone call and told them that some people have encircled the house of Mst. Shamayla non-petitioner, he was unable to escape and requested them to rescue him but it was not done, thereafter he was taken away from the said house by Afzaal and the accused petitioner. Allegedly as they arrived at the place of occurrence the victim tried to escape upon which Muhammad Afzaal fired and committed his murder. It will not be out of place to mention here that there was nothing on record showing that anybody witnessed the accused- petitioner while forcibly taking away the deceased from the house of Mst. Shamayla and going towards the place of occurrence. No other substantial evidence establishing his involvement and connecting him with the crime existed on record, thus prima facie the case against him was that of further probe.
10. From perusal of the record reveals that Nasir Idrees and Mst. Shamayla accused non-petitioners were not shown to be present at the place where the deceased was done to death. The prosecution alleged them for committing the offence of murder within the meaning of section 149, A.P.C. The said section does not create a new offence but deals with the crime committed in the prosecution of common object. To establish the allegation of committing the offence under the aforesaid provisions of law it must be proved that the accused was a member of an unlawful assembly and the offence was committed in the prosecution of common object. Meaning thereby that to be a member of an unlawful assembly having common object was the necessary ingredient, to bring the case of an accused within the purview of section 149, A.P.C. In the case against the non-petitioners no such situation existed on record. Admittedly Mst. Shamayla and Nasir Idrees were not present at the spot where the offence of murder was committed, thus prima facie their participation in the occurrence was a matter of further probe and they were rightly allowed bail by the court below.
11. Before parting with the order, I would like to make it clear that any observation made by this Court at this stage be taken as tentative. The trial Court shall be free to have an independent view of the case while deciding it on merits.
Upshot of the above discussion that revision petition filed by the complainant against Nasir Idrees and Shamayla Ghazanfar non-petitioners stands dismissed while that of filed by Mobeen Liaquat accused-petitioner is accepted and the bail is granted. He shall be released from custody on furnishing bail bond in sum of Rs,20,00,000 (Twenty Lac) and personal bond in the like amount to the satisfaction of any Magistrate Ist Class, Mirpur.