An incident took place on the 9th of December 1969 at degerwela, in village Koth Wahla in the area of Police Station Narang, District Sheikhupura, in which seven persons from one side and to persons from the other side were injured. A report was lodged under section 326/149, P. P. C. With the police about the incident, by Sarwar son of Amir Ali at 1 p.m. On the next day (i.e. 10th December 1969), in which Mukhtar (deceased), Sadiq, Mushtaq, Muhammad Malik, Habib, Saleem and Nasir were named as the accused persons.
Another report (F. I. R. No. 123 of 1969) about the same incident was lodged on 10th December 1969) at 4-30 p.m. By Sadiq son of Muhammad Malik (an accused in the first F. I. R.), under sections 307/324/147 and 148, P. P. C. In which Amir Ali, his is five sons, namely, Shaukat Ali, Sadiq, Sarwar, Muhammad Khan and Ashraf and one .Said Mohammad were named as accused persons.
Mukhtar, who was named as an accused person in the earlier F. I. R., died subsequently, on the 14th December 1969, after his discharge from the hospital. Thereafter the second F. I. R. Was amended by adding section 302, P. P. C. To the same. Investigation was carried out and the police found the allegations made in the first information report to be incorrect and the case was recommended for cancellation. Prior to that however, Amir Ali etc. Had filed a private complaint against the other party under sections 326, 323, 147, 148 and 149, P. P. C. In the other case, namely, the one in which 'the report (F. I. R. No. 123 of 1969) had been made by Sadiq son of Mohammad Malik,' he challan has been put up in the Court of the committing Magistrate. Both the cross-cases (i.e. The private complaint and the police case based on F. I. R. No. 123/1969), are pending inquiry before Kh.
Muhammad Yousaf, Magistrate 1st Class, Shahdara, District Lahore, in which evidence is being recorded.
Shaukat Ali, Sadiq, Sarwar, Muhammad Khan and Ashraf sons of Amir Ali and Said Muhammad, the accused persons in the murder case have applied for bail. Amir Ali co-accused has already been granted bail.
2. The prosecution story, as stated in F. I. R. No. 123 of 1969 briefly is that on 9th December 1969, at about degerwela, Abbas a servant of Amir Ali started feeding his cattle on the paddy stock of the complainant party. When Nasir Ahmad, a paternal cousin of Sadiq son of Muhammad Malik complainant stopped him from doing so, the former (i.e. Abbas) started abusing him and threa-- tened that he (Nasir Ahmad) shall be dealt with. After a short --the Shaukat, Ashraf, Sarwar, Muhammad Khan, Sadiq sons of Amir Ali and Said Muhammad, petitioners as well as Amir Ali turned up. Out of them, Shaukat, Sadiq, Muhammad Khan and Ashraf were armed with dangs, Sarwar and Said Muhammad were armed with hatchets, while Amir Ali was empty-handed. They came and stood before the house of the complainant party and shouted lalkaras calling out the person who would dare to prevent their cattle from grazing. Sadiq and Mukhtar (deceased) came out and requested them to desist-but with no result. Nasir Ahmad came out and abused Amir Ali who incited Shaukat etc. To kill him. Upon this they pounced upon Nasir Ahmad. Muhammad Khan gave him a dang blow, which fell on his arm. Nasir Ahmad ran away and took refuge in the courtyard of his house. Sadiq son of Muhammad Malik (complainant) and his brother Mukhtar (deceased) then came forward ; Sarwar and Said Muhammad petitioners, who were armed with hatchets gave hatchet blows to Sadiq complainant, one after the other, whereupon the latter fell on the ground. Sadiq and Ashraf petitioners gave blows with their dangs on the head of Mukhtar (deceased). On hearing the hue and cry Muhammad Malik (the father Sadiq complainant) Saleem and Habib sons of Allah Ditta and Nasir Ahmad came to their help, but Shaukat and Muhammad Khan petitioners, who were beating the complainant, also attacked and injured them. Talib and Sadiq son of Muhammad Din, who were present at spot also saw the occurrence. After the incident, the assailants went away shouting lalkaras. Sadiq (complainant) and Mukhtar were taken to Mayo Hospital, Lahore on train for treatment, the same eveninJ. After returning from Lahore on the next day Sadiq complainant lodged the F. I. R. (No. 123/69) at 4-30 p.m. At Police Station Narang, District Sheikhupura.
3. As already mentioned above, the petitioners, who are accused in this case, had also lodged an F.
I. R. Earlier in the day, at t-CO p.m. And had named the members of the -complainant party as assailants and subsequently, they also filed a private complaint with regard to the same incident, against Sadiq son of Muhammad Malik and his party-men; which is pending inquiry along with the above-noted police case. In other words there are to versions about the same incident in which each side has described the other as the aggressors.
4. The learned counsel for the petitioners urged (i) that the petitioners had hit back in the exercise of their right of self---defence, as stated in their private complaint and also in the F.I. R. Lodged by them. If that version was to be accepted as true, the present petitioners would stand fully exonerated and would not be guilty of any offence. According to the learned counsel, the plea of self-defence is substantiated by the fact that to persons, namely, Sarwar and Sadiq were admittedly injured on the petitioners' side. Sarwar had received a sharp---edged injury, which was declared to be grievous while Sadiq had suffered three simple injuries, caused with a blunt-edged weapon,
(ii) that the number and nature of the injuries on the person of the deceased as well as the witnesses And the weapons alleged to have been used in causing these injuries, negative the allegation that there was any intention on the part of the petitioners to cause the death of Mukhtar or any one else.
To appreciate this argument the injuries received by the deceased and the members of the complainant party may be enumerated. The deceased was found to have the' following injuries:-
(1) Haematome on right parital eminence, 3" x 3", and
(2) Incised wound on the outer side of the upper right arm 1" x --" skin deep.
(The above-noted injuries on "the deceased are attributed to Muhammad and Ashraf. The deceased expired after five days).
Injuries on other members of the complainant party are detailed below, all of which were found to be simple injuries, caused with blunt weapons:-
(1) Muhammad Malik One bruise.
(2) Saleem One abrasion.
(3) Habib One bruise.
(4) Nasir Ahmad One abrasion, one swelling.
(5) Mushtaq One bruise.
(6) Mst. Fatima One swelling.
(7) Mohammad Sadiq Five simple injuries on hisperson.
(The above-noted injuries are said to have been caused by the accused-petitioners, who were armed with dangs and hatchets.).
The contention of the learned counsel for the petitioners is that if the accused/petitioners, who are said to have been armed with hatchets and dangs, intended to cause death, they would certainly have inflicted I more serious injuries to the deceased and his companions and that since the injuries caused by them are very few in number and simple in nature, it is evident that the petitioners did not intend to cause any one's death.
(i.e) that it was a sudden fight and there was no common intention between the petitioners to murder Mukhtar. Each of the petitioners is therefore liable for his own actions and cannot be made vicariously liable for the injuries caused to Mukhtar (deceased) by Sadiq and Ashraf petitioners.
The learned counsel for the petitioners submits that on a consideration of the above-noted arguments it is possible to urge, reasonably, that the petitioners other than Ashraf and Sadiq were guilty, at worst, of an offence under section 323 or 325, P. P. C.
5. The learned counsel for the complainant submits on the other hand; that for purpose of granting bail this Court ought not to examine the merits of the case consider the defence plea or to assess the medical evidence and come to a conclusion that the offence made out against If the petitioners is not one under section 302, P. P. C. But is a lesser-one, under section 325 or 323 P. P. C.
And grant bail on that basis. For this submission he places reliance on Muhammad Aslam and others v. The Sate (PLD 1967 SC 539) In that case the High Court in a case under section 302, P. P. C had granted bail to the accused on the ground. That the medical evidence disclosed that the offence committed by the accuse fell within the preview of section 326, P. P. C. And not under section 302, P. P. C. On appeal the Supreme Court held that the grant of bail was not warranted in law arid observed a follows-- "The High Court is thus not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has 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.
In the case before us there is direct evidence of the assault by the appellants on Riaz deceased.
What was the nature of the injuries caused by the appellants and whether the were collectively caused with the intention of causing death is for the trial Court to judge. The learned High Court Judge was, therefore, not competent to made an assessment of the medical evidence and form an opinion whether the offence committed by the appellants fell under section 302 or 325, P. P. C., which presumably was the basis of the order, granting bail to the appellants. "
6. In reply, the learned cuun5el for the petitioners submits that notwithstanding the observations quoted above the Court is not entirely precluded from appreciating the evidence of the witness. His relies on Ch. Abdul Malik v. The State (PLD 1968 SC 349). This case also relates the grant of bail to persons accused of an offence under section 302, P. P. C. Muhammad Aslam's case, referred to above, has been considered therein. The learned counsel laid emphasis on the following observation's of their Lordships at page 352:-- "The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refuse without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested, which function are to be assumed at the trial stage. However, if it is found that the `charge is groundless, i. e. To say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to- a minor on which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple -hurt, the limitation on the Courts' discretion is removed which must then lie freely exercised in favour of the- grist of bail."
The learned counsel for the petitioners also relied on Allah Ditta and 10 others v. 'the State (1970 P Cr. L J 666), Akbar Din and 2 others v. The State (1970 P Cr. L 1559) and Dur Muhammad and another v. The Slate (1970 P Cr. L J 25). In the first mentioned case, to F. I. Rs. Had been lodged, one by each party, about the same incident. One F. I. R. Was for an offence under section 302, P. P. C. While the other was under section 307, P. P. C. The learned Judge, while granting bail to the petitioners in one of the said cases (i. e., the case under section 302, P. P. C.), observed as follows:- "There are to versions of the matter and it is difficult at this stage to determine who was the aggressor and who was aggressed. Of course, it is within the domain of the trial Court to determine, but one thing cannot be lost sight of that a counter case under section 307, P: P. C. Has been registered against the opposite-party and that the accused also suffered injuries in the conflict. All these circumstances undoubtedly can be taken notice of in the matter of granting or refusing bail.
In the entire circumstances it can be said that the case of the petitioners is covered by section 497(3), Cr. P: C. Except Faqir Muhammad who has been specifically named by the deceased as one of his assailants. Accordingly, the bail application of Faqir Muhammad is dismissed. The other applicants, . . . . . . . Are admitted to bail."
In the case of Akbar Din v. The State where the allegation was that a fight had taken place between-, the parties, resulting in the death of one Karamat Ali,. a case was registered against four persons, namely, Muhammad Akram, Akbar Din, Habib Ullah and Saif Ullah. All of them were committed to trial. Out of the four accused Muhammad Akram and Akbar Din were armed with dangs, while Habibullah and Saifullah were carrying the: hatchets. Muhammad Akram was released on bail by the Additional Sessions Judge and the learned Judge of the High Court, while graning bail to the remaining three persons observed as follows:-- "The learned counsel for the State, however, contended that the very fact that to of the petitioners were carrying hatchets should disentitle them to bail, even if otherwise their case is par' materia with that of Muhammad Akram. I do not think there is any force in this contention. The fact that there are to injuries on-the heed of the deceased and, in the above circumstances, it is not possible to determine as to who caused those injuries. Moreover the circumstance that the case appears to be that of a free fight in which the culpability of each assailant may ultimately be found to be only individual; does not make it possible to hold that those accused who carried the hatchets, by that fact alone, were not entitled to bail."
It appears from a reading of this judgment i. e. In Akbar Din v. The State that the accused party did not- assault the party of the deceased but that there was a fight between them which has been described as a `free fight' between the parties: It was for this reason that the accused /petitioners in that case were held to be individually liable for their acts and therefore some of them may not have been vicariously liable for the murder. In the case in band however there was no `free fight' but 'a calculated attack by the accused party, on the complainant's side.
In the third case, namely, Dur Muhammad and another v. The State, a number of Supreme Court cases on the question of grant of bail have been discussed by the learned Judge. The learned counsel for the petitioners has place reliance on the following observations. In the said judgment:-- "From these authorities it is plain enough that deeper appreciation of grounds and evidence is not permitted but there is no bar in looking at the evidence to see whether reasonable grounds exist for any such belief, in other words, whether those grounds appeal to a reasonable man or are absurd. As a rule the evidence recorded during the inquiry and the commitment on the basis of that evidence furnish the material to form the belief against the accused but there can be exceptions; So it depends upon the circumstances of each case. It, therefore, follows that although the scope of assessm ent of the evidence is limited but it is not altogether eliminated as other-wise it is plainly not possible to find out the reasonableness or the absurdity of the evidence upon which the case of the prosecution is founded."
7. I have given my anxious thought to the matter and have also-carefully considered the case-law cited by the parties.
The learned State counsel stressed upon authorities which lay down that the Court should not evaluate the evidence or assess the case on merits while considering the question of bail. Oil the other hand, the learned counsel for the petitioners has emphasised on the authorities according to which the appreciation of evidence is not altogether excluded. After the careful study of the observations of the learned Judges of the Supreme Court in authorities laying down the principles regarding the grant bail under section 497 (1)/498, Cr. P. C. In cases punishable by death or transportation, I find that although the Court is not altogether precluded from looking at the statements of the witnesses, the medical report or the evidence in the case, yet the scope of their assessm ent is very limited. These matters can be considered only to determine whether or not reasonable grounds exist for believing that the accused/petitioner was guilty of such all offence but deeper appreciation of the same is not permissible The Curt can look at the statements of the witnesses recorded by, the police under section 161, Cr. P. C., the evidence recorded during the commitment proceedings or the medical report to see whether, on the face of it, such evidence or statements make out an offence punishable with death or transportation or they only reveal a lesser offence which is not so punishable. The 'reason for allowing this is obvious. If the Court was not permitted to consider the evidence or statements etc. For this purpose, the police officer recording the F. I. R. Or investigating the case, would only have to add section 302, P. P. C. To the offence mentioned therein and the accused would stand permanently disentitled to the grant of bail although the evidence did not even prima facie discl6se such an offence. It is for this reason that their Lordships of the Supreme Court observed in Abdul Malik's case (at page 352)- --------however, if it is"(found that the charge is groundless, i. e. To say unsupported by any evidence or instead of the rounds being reasonable, their absurdity stands exposed on a lain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused, by simple hurt, the limitation on the Court's discretion is removed."
In the case in hand, however, the position is different. Clear allegations have been made against the petitioners that they had armed themselves with hatchets and Bangs and had made, an attack on the other party which resulted in the death of Mukhtar, deceased. There is no mention of its being a `sudden' or `free' fight between the to groups. These allegations if un-rebutted (or not proved to be incorrect during the cross--examination) would be sufficient to establish a. Prima facie case under section 302/149; P. P. C. Against the petitioners. It is not a case where the facts alleged in the evidence, without any deep or critical analysis, disclose a lesser offence. Learned counsel for the petitioners however urges that I should also consider the allegations made in the cross-cases, in coming to the conclusion that the accused had caused injuries only in the exercise of the right of self-defence or that there was `sudden fight' between the parties in which both sides suffered injuries. He further wants me to carefully analyse the medical evidence and consider the number and nature of the injuries on the P. Ws. For coming to a conclusion that the petitioners had no intention of causing the death of anyone and only wanted to inflict simple injuries to the members of the complainant party, and that therefore they were not guilty of an offence under section 302, P. P. C. But merely of an offence under section 323 of 325, P. P. C.
I am of the view that this would amount to prejudging the case and usurping the function of the trial Court which has exclusive jurisdiction of `sifting, analysing and appreciating the evidence.
Their Lordships of the Supreme Court have clearly laid down in Muhammad Aslam v. The State that this Court ought not to assess the. Evidence or analyse the medical report so as to come to a conclusion that the offence committed by the appellant fell under section 325, P. P. C., rather than section 302, P. P. C. It would therefore not be proper to go into the merits of the case or enter into a deep analysis of the evidence, at this stage.
8. Allegations made by the witnesses against the petitioners, disclose a prima facie case of murder. There are, on the face of it, reasonable grounds to believe that the petitioners are guilty of the murder of Mukhtar deceased. In this view of the matter this is not a fit case for the grant of bail.
The bail application is consequently dismissed.