' This is a reference made by the District Criminal Court Mirpur in a. Bail application moved by the applicants against whom a case under section 5/15 Islamic Pena. Laws (Enforcement) Act, 1974 and sections 307, 147/148/149, 452 440 297 and 506, A. P. C. Read with section 17 of the Offence Against Property (Enforcement of Hudood) Ordinance, and pending before it for the order of this Court as the difference of opinion has cropped up between its Members on the question of grant of bail to the petitioners inasmuch as the learned Sessions Judge is in favour of bailing them out except Muhammad Sharif, petitioner while the District Qazi's opinion is that they are not entitled to the concession of bail at this stage.
2. Briefly stated, the facts leading to the making of the reference are that on 7-8-1984 at 10-15 a. m.
Muhammad Sadiq, complainant lodged a verbal F. I. R. With the A. S. I. Police Station Afzalpur in which it was alleged that on the same day at about 9-00 a. m. Haji Muhammad Yusuf went to his shop situated at Jatlan and asked him to call Muhammad Sadiq Butt, Member Local Council from the bazar because Muhammad Ashraf, Muhammad Akbar etc. Accused were taking forcible possession of their graveyard by demolishing the same through a Tractor on which the said Councilor was called to whom Muhammad Yusuf narrated the whole incident. It was further alleged that on receiving the above report, Muhammad Sadiq, Haji Muhammad Yusuf, Muhammad Yaqub, Tariq Maqsood Butt and he left for the place of occurrence and on the way, his elder brother Muhammad Ishaque and younger brother Abdul Khaliq and Abdur Rehman also joined and accompanied them to the place of occurrence where they found Muhammad Ashraf, Zulfiqiar, Muhammad Din, Muhammad Akbar, Muhammad Sharif, Kadar Dad, Mushtaque, Ahmed Din, Muhammad Afzal and Muhammad Alam demolishing the graveyard by employing a Tractor belonging to a 4pathan' who stopped the same on seeing them. It was further alleged that the structure of his house adjacent to the aforesaid graveyard had also been demolished and that Muhammad Sadiq asked the accused that they had committed excesses as this matter had already been settled on which Muhammad Akbar and Muhammad Ashraf, petitioners commanded Muhammad Sadiq Butt that he should leave the place and that they would not let his companions go alive today and then started abusing and launched an attack on them. The report also contained the allegation that Muhammad Sharif and Kadar Dad, petitioners were carrying revolvers, Muhammad Din and Muhammad Ashraf '12 bore guns, Zulifqar, Muhammad Afzal and Muhammad Alam sticks while Muhammad Akbar, Mushtaque and Ahmad Din were armed with hatchets and that Zulifqar and Ahmed Din, petitioners inflicted stick and hatchet blows on his brother Khaliq's head and arms, Zulfiqar Muhammad Akbar and Kadar Dad caused injuries to Haji Muhammad Yusuf with sticks, hatchet and butt of the revolver respectively, Muhammad Ashraf and Ahmed Din caused injuries to Tariq Mehmood with the butt of the gun and hatchet respectively and Sadiq was injured by Muhammad Alam and other accused with sticks and hatchet while Abdur Rehman was given stick blows by Muhammad Afzal, accused. It was also alleged in the F. I. R. That Ashraf and his brother Muhammad Ishaque launched an attack on him who started running away towards the Canal. The said petitioners tried to catch hold of him and chased him and out of them Muhammad Sharif fired a shot at him with his revolver near the house of Gulzar and then about six paces ahead of that he was caught hold of by Ashraf and Muhammad Sharif fired a revolver shot at him. After this all of these, it was alleged, went out of sight behind the slope and that the complainant found his brother lying on the bank of the Cinal when he reached there. The report also contained the allegation that Muhammad Taj and Muhammad Ismail also came on the spot who told them chat Muhammad Ashraf, Muhammad Akbar and Muhammad Dip had snatched from them .12 bore guns and cartridges which they were carrying with them while coming to the spot from their houses on hearing the commotion and sounds of the firing.
3. On the above report, a case against the petitioners was registered by the police and after investigation they were challaned in the District Criminal Court Mirpur for the commission of aforementioned offences. The petitioners moved an application for their bail before the said Court which was accepted except in case of Muhammad Sharif, by the learned Sessions Judge but rejected by the other Member of the Court namely District Qazi, vide their orders dated 24-12-1984 passed separately. Hence this inference for the order of this Court as required under section 23 of the Islamic Penal Laws (Enforcement) Act, 1974.
4. I have heard the learned Additional Advocate-General and the counsel for the complainant as well as the accused and have also gone through the orders made by the learned Members of the District Criminal Court Mirpur and the record of the case. The counsel for the petitioners has contended that the petitioners are entitled to the concession of bail as it is a case of further inquiry for the following reasons :-
(1) That the alleged act of Muhammad Sharif, petitioner of firing at and killing the deceased is quite distinct and separate from the original occurrence in which the petitioners are alleged to have assaulted the accused and caused injuries to them and as such the other petitioner cannot be made liable for the act of Muhammad Sharif petitioner because the former occurrence had taken place at a distance of 467 feets from the place where the latter took place ;
(2) That it was only Muhammad Sharif, petitioner who is alleged to be solely responsible for the death of Muhammad Ishaque, deceascl and the other petitioners had not caused any injury to him and even no overt act is attributed to them except Muhammad Sharif, petitioner and thus their vicarious liability for the alleged criminal act of Muhammad Sharif is still required to be determined by the trial Court in the light of the evidence that will be adduced before it by the parties.
(3) That Muhammad Sharif and Qadar Dad, petitioners had also sustained injuries during the occurrence which have been suppressed in the F. I. R. And the statements of the witnesses recorded under section 161, Cr. P. C.
(4) That the fact whether or not there was a graveyard in 10 Marlas of the land belonging to the Department of the Canal is required to be ascertained by the trial Court as the entries to this effect in the `Khasra Girdawari' has been incorporated by way of mutation only three to four days prior to the incident.
(5) That the statement of Gul Noor, P. W. Recorded under section 161, Cr. P. C. That at the beginning only Zulfiqar petitioner had gone to the spot and had started plunging the land and the other members of the complainant party and the accused had come there later on and the tractor did not demolish or damage any graveyard on the spot, belies the prosecution case that the accused had formed unlawful assembly after arming themselves with various kinds of weapons of offence and had started demolishing the graveyard and the structure of the house of the complainant.
(6) That two guns are alleged to have been recovered from Muhammad Akbar and Muhammad Ashraf, petitioners which fact shows that the complainant party was aggressor and had come on the spot armed with fire-arms which were snatched from its members.
5. In support of his above contentions regarding the case of the petitioners being one of further inquiry, he has referred to PLD 1983 SC (A J & K) 8, 1983 P Cr. L J 408, 1983 P Cr. L J 745, 1978 P Cr. 1_, J 875, 1981 P Cr. L J 1102,-1983 P Cr. L J 86 and 1983 P Cr. L J 2177.
6. The learned- Additional Advocate-General and the counsel for the complainant party have opposed the grant of bail to the petitioners on the ground that the petitioners had formed unlawful assembly and in the prosecution of its common object had caused the death of Muhammad Ishaque, deceased and injured other members of the complainant party and therefore, it matters not whether or not all of them took any part in the commission of the offence of murder as each of them would be liable for the act of any other member of the unlawful assembly committed in prosecution of its common object.
7. After giving my due consideration to the arguments addressed at the bar by the counsel for the parties and going through the orders of the Members of the District Criminal Court passed in t .e bail application of the petitioners. I am of the opinion that in the facts and circumstances of the case, the order made by the learned Sessions Judge for the grant of bail A to the petitioners except Muhammad Sharif, is just and proper and in accordance with the settled principle of law governing the bail matters because the further inquiry is needed to determine the guilt of the said petitioners in the commission of the offences of murder and attempt to murder alleged to have been committed by them.
8. As regards the murder of Muhammad Ishaque, deceased it is undisputed that it was only Muhammad Sharif, petitioner who caused his death by fire-arm injury to him and none of the other petitioners except Muhammad Ashraf was either present on the spot at the time he was fired at by him or did any other overt act. Muhammad Ashraf, petitioner is only alleged to have chased the deceased along with Muhammad Sharif, petitioner and was catching hold of him when Muhammad Sharif, is alleged to have caused him fire-arm injury which resulted in his death. So, in these circumstances, the petitioners to whom the bail is granted by the Sessions Judge can only be held vicariously liable for the murder, if it is found that the act of Muhammad Sharif, petitioner of causing death of Muhammad Ishaque, deceased was done in furtherance of the common object of the unlawful assembly consisting of the petitioners or that the petitioners knew or had the reason to believe that it was likely to be committed in prosecution of the common object of the said assembly. But in the facts and circumstances of the case, it cannot be said with any certainty at this stage of the case that either the petitioners had formed unlawful assembly with the common object of causing death of any member of the complainant party or that they knew that the murder was likely to be committed in prosecution of their common object. Any such determination can only be made by the trial Court after taking into consideration the evidence of the prosecution and the defence produced before it.
9. The common object of the unlawful assembly at a particular stage of the incident is determined after taking into consideration the nature D of the assembly, the arms it carries and the behaviour of its memb:rs at or near the scene of occurrence. In this case, it is not the case of the prosecution itself that the common object of the unlawful assembly comprising petitioners was to commit offence of murder but at the most its common object can be said to take of or establish possession by force on the land belonging to the Department of Canal and alleged to be used as graveyard `Ihel-e-Islam'. Therefore, the petitioners would be liable for the murder of Muhammad Ishaque, deceased only if it I established that in the prosecution of the above object of the unlawful assembly the petitioners knew that the offence of murder was likely to b committed by any or more of them but there any such knowledge cannot be presumed at this stage of the case when the prosecution evidence is still to be recorded by the trial Court who will only be in a position to form any opinion about any such knowledge of the petitioners after the assessment and appreciation of the evidence brought on the record by the prosecution as well as the defence. At the present movement, the question whether or not the petitioners are vicarious!) liable for the criminal act of each other is a matter of further inquiry to be made by the trial Court. There are certain features of the case which in my opinion, made the cases of F the petitioners under discussion one of further inquiry for the offences punishable with death or transportation for life and as such they deserve to be released on bail as a right in view of the provisions of section 497(2), Cr. P. C. It appears from the F. I. R. Itself that none of the petitioners caused any injury to Muhammad Ishaque, deceas-d at the place where the petitioners are alleged to have formed an unlawful assembly. They are alleged to have given thrashing and caused injuries with blunt weapons to other members of the complainant party but so far the deceased was concerned no overt act in respect of him is attributed to them except Muhammad Ashraf, petitioner. The prosecution case is that out of all the petitioners only Muhammad Sharif and Muhammad Ashraf abused the deceased and attempted to launch an attack on him and :G then they chased him when he started running away from the spot towards the Canal and that eventually Muhammad Sharif caused his death by firing at him at a place which was at a distance of 467 feet from the place from where the deceased had run away and was followed by the said petitioners. Thus, the question whether the petitioners who did not cause any injury to the deceased are or not constructively liable for the act of Muhammad Sharif, petitioner is definitely n matter of further inquryi and their bail cannot be withheld at the present movement by holding! Them vicariously liable for the murder of Muhammad Ishaque, deceased! At the hands of Muhammad Sharif, petitioner.
10. There is yet another circumstance which cannot be ignored of while considering the question of grant of bail to the petitioners. It is on record that out of the accused, Muhammad Sharif and Kadar Dad also received injuries on their persons including the lacerated wound over their skulls. It is even alleged by the counsel for the petitioners that pellet injuries have been found on the head of Muhammad Sharif, petitioner in a X-ray film taken of his head at the Headquarter Hospital Mirpur, and that they had requested the trial Court to send for and examine the X-ray report but their request was turned out The F. I. R. Is quite silent about any accused also having been injured during the occurrence what to speak of explaining the injuries on their persons. When the factum of the aforesaid accused having sustained injuries during the occurrence is seen in the light of the statement of Gul Noor, P. W. Recorded under section 161, Cr. P. C. And who is alleged to be a person when was employing the tractor on the disputed land at the time of occurrence, the questions as to whether the occurrence had originated and taken place in the manner as alleged by the petitioners and whether the accused or the complainant party was aggressor and had initiated the attack still remain to be determined. The said witness has stated in his police statement that at the beginning only Zulfiqar, petitioner was sloughing the land and it was later on that the members of both the complainant and the accused party had started coming in and gathered on the spot.
This statement, prima facie, does not support the prosecution case that the petitioners armed with deadly weapons were present on the spot when the complainant party case thereafter knowing that their graveyard was being damaged and demolished by the petitioners.
11. For the foregoing reasons, I agree with the opinion of the learned' Sessions Judge and grant the bail to the petitioners except Muhammad! Sharif, petitioner in terms of the order made by the learned Sessions Judge. I