' This is a Revision Petition against the order of the learned District Court of Criminal Jurisdiction Poonch-Rawalakote dated 16-3-1985 whereby the bail application of the petitioners Soofi Baqa Muhammad and Muhammad Azam sons of Fateh Sher Khan Caste Sudhan residents of Ghambhir was rejected.
2. This bail application arises out of the following facts :- (i)The accused persons are involved in the murder case of Muhammad Asghar aged 47 years approximately on 28-2-1985 and the F. I. R. Was lodged on the same day by Muhammad Riaz Khan, the nephew of the deceased. As many as ten persons were mentioned in the F. I. R. One accused Mst. Azmat Jan, the wife of Munshi Khan, was left out by the police and not challaned before the District Court of Criminal Jurisdiction Rawalakote.
(ii) The challan was put up before the Court on 2-4-1985 ;
(iii) Two applications for bail were moved: One on behalf of five ladies i,e, Mst. Karam Noor, Mst.
Nasha Begum, Mst. Ramzan Bibi, Mst. Nasim Akhtar and Mst. Taslim Akhtar and these five ladies were bailed out vide order of the Court passed on 16-3-1985. The second application was moved on behalf of Soofi Baqa Muhammad, Muhammad Azam and Abdul Latif on 12-3-1985. Abdul Latif was released on bail under the order of the said Court passed on 16-3-1985 and bail was refused to the two petitioners i,e, Soofi Baqa Muhammad and Muhammad Azam.
(iv) All the ten accused persons belong to one family and reside in two separate houses but they are closely related to each other. Mst. Karam Noor is the wife of Soofi Baqa Muhammad, the petitioner. Mst. Nasha Begum is the wife of the petitioner Muhammad Azam. The other three accused ladies are the daughters of the accused Karam Noor and Baqa Muhammad accused.
3. The learned counsel for the petitioners has assailed the order of the learned District Court of Criminal Jurisdiction as regards the petitioners on the following grounds :-
(a) No fatal injury has been attributed to these two petitioners. The prosecution story is that the fatal injury was caused by one Munshi Khan who did not apply for his bail. The stone recovered from Munshi Khan is 3:1- kilos in weight. No stone was recovered from petitioners:
(b) There was no motive for the petitioners to murder the deceased Muhammad Asghar Khan ;
(c) That it is a case of sudden fight between the deceased Muhammad Asghar Khan and Munshi Khan, the alleged principal offender and the petitioners have been falsely implicated in this murder case. There is no sign of any injury on the persons of these two petitioners which fact shows that they did not participate in the alleged offence ;
(d) There are certain eye-witnesses but they have implicated the petitioners out of enmity and they are also related to the deceased. Moreover there are certain important and material contradictions in their statements recorded. Under section 161, Cr. P. C. Their version does not tally with the prosecution story given in the F. I. R. ;
(e) The learned District Court of Criminal Jurisdiction has failed to appreciate and assess the real controversy and, without assigning any valid reasons refused to enlarge the petitioners on bail ;
(f) There was no common intention to murder the deceased. The involvement of the petitioners is due to the fact that the petitioners reside in the vicinity and are related to Munshi Khan ; and
(g) The following prosecution witnesses are mentioned in the F. I. R. (I) Muhammad Riaz, the nephew of the deceased,
(2) Mst. Rashida Begum, the widow of the deceased,
(3) Mst. Zaitoon Begum, the niece of the deceased,
(4) Mst. Parveen Akhtar, the niece of the deceased,
(5) Muhammad Saghir son of Muhammad Hussain, a stranger ;
(6) Misri Khan one of the elders of the family of the deceased.
' Misri Khan is an elder of the deceased's family who was asked by the petitioner Baqa Muhammad to go on spot and settle the dispute regarding the disputed Site for tethering the cattle. This elder was present on spot when suddenly there was a quarrel at about 3.25 p,m. And Muhammad Asghar Khan was killed.
4. Mr. Sardar Khan, the learned counsel for the petitioners, cited the following authorities :-
(a) Where the fatal injury has not been attributed to the petitioners, they are entitled to bail :- ' P Cr. L J 2588 and 1984 P Cr. L J 2166.
(b) On the point of sudden fight or sudden flare up :-
(1) Criminal Revision No, 13 of 1985, Khaliq Hussain v. The State decided by the Chief Justice of the Shariat Court Azad J & K on 25-2-1985 ; 1972 P Cr. L J 1257 ; 1980 SCMR 784 ; 1982 P Cr. L J 1000 ; 1983 P Cr. L J 1294 ; 1983 P Cr. L J 1558 ; 1983 P Cr. L J 2016 ; 1983 P Cr. L J 2164 ; 1983 P Cr. L J 2443 ; 1984 P Cr. L J 2557 ; 1984
(2) Criminal Miscellaneous No, 278 of 1983 Matloob. Hussain Shah v. The State decided on 11-12-1983 by Sardar Muhammad Ashraf Khan, Judge of Shariat Court, Azad J & K ;
(3) Criminal Revision No, 83 of 1984 Salam Din v. The State decided on 8.12-1984, decided by me (page 2) ;, and
(4) Criminal Miscellaneous No 15 of 1984 and 18 of 1984 Dil Muhammad Khan v. The State decided on 9-10-1984 by me.
6. Mr. Muhammad Nisar Mirza, the learned Additional Advocate-General, replied that :--
(a) The accused petitioners are mentioned in the F. I. R. And their respective parts attributed to them are also mentioned therein ;
(b) The occurrence took place in the broad daylight and there is no doubt about the identity of the petitioners ;
(c) The alleged murder of Muhammad Asghar Khan was witnessed by three adult males and three adult famales who have clearly mentioned the role attributed to these two petitioners in their statements recorded under section 161, Cr. P. C. ;
(d) The challan has no doubt been put up before the learned District Court of Criminal it Jurisdiction Rawalakote but the statements of the accused persons under section 242, Cr. P. C.
Have not been recorded so far. This case of murder is at the initial stage and, therefore, bail cannot be granted to the petitioners ;
(e) That the petitioners are involved in the case of murder which is punishable with death or life imprisonment. The embargo under section 497(1), Cr. P. C. Applies to the present case and, therefore, no bail can be granted at this stage ; and ( f) That the version in the F. I. R. Is supported by the eye-witnesses.
' The learned Additional Advocate-General has cited the following authorities :-
(a) Regarding the point that the persons, who are present on spot and participate in the crime, are not granted bail even if they have not inflicted any fatal injury to the deceased :- ' P I; D 1967 SC 340 ; 1979 P Cr. L J 63; 1979 SCMR 114; 1981 SCMR 849 and 1982 SCMR 84.
(b) Regarding the point that the inmates of the house of the deceased are the competent (best) witnesses :- 1969 SC 552; 1969 SCMR 821 ; 1970 SCMR 432; 1974 SCMR 1 and 1980 P Cr. L J 890. .
(c)Every case has got its peculiar facts and no other ruling is fully applicable to the facts of the other case : Reference was made to the unreported case of Javed Aslam v. The State, decided by the Supreme Court of Azad Jammu and Kashmir on 9-3-1983.
7. I have heard the learned counsel for the parties and have carefully gone through the record of the case and the police diaries produced by the learned Additional Advocate-General.
8. I agree with the learned Additional Advocate-General that each case has got its peculiar facts and no authority is hundred per cent applicable to the facts of the other case.
' In the case of Barhing Javed Aslam v. The State decided by our Supreme Court on 9-3-1983, it was observed in para. 8:- "After careful consideration, we are of the view that no hard and fast rule, as submitted by the learned counsel independent of accompanying facts could be regarded valid. To hold so would not be in keeping with the principles of safe administration of justice. The correct approach, as stated earlier, would be to consider each case in the light of its own peculiar circumstances."
On page 8 the learned Judges of the Supreme Court observed : "It is the settled principle of criminal jurisprudence that each case, including the bail matters, is decided in the light of its own facts."
9. I have gone through the evidence of Misri Khan recorded under section 161 of the Cr. P. C. On 28- 2-1985. This man is 54/55 years old. His statement is very clear that {{URDU TEXT}} ' It is also mentioned by him that the other accused persons were hurling stones on the complainant party.
10. I have perused the report of the Patwari which is attached to the Site Plan and is on the judicial file of the trial Court. The occurrence has allegedly taken place at the Site of tethering the cattle which appears to be in the possession of Muhammad Asghar deceased.
' The Site Plan prepared by the Patwari on 6-3-1985 shows the Site No, 1 as the place of the death of Muhammad Asghar which is towards the south we,t from the houses of the accused and the complainant party. This Patwari has recorded that :- {{URDU TEXT}}
11. Let me here first make it clear that it is a bail matter. The principles of grant or refusal of bail are given in the Criminal Procedure Code especially section 497 and in the following authorities of the Superior Courts :- ' AIR 1927 Rang. 205 ; AIR 1929 Lah. 284 ; AIR A I-R 1958 Pb. 123 ; PLD 1959 Kar. 37 ; PLD PLD 1982 SC (A J & K) 20 and PLD 1984 1933 1963 Sh. C Sind 367.; Lah. 279 ; (A J & K)
138.
12. I will refrain from going into the merits of the case and, therefore, would not like to touch some of the points urged by Mr. Sardar Khan, the learned counsel for the petitioners, because my opinion may prejudice the trial Court. Of course, I can make a tentative assessment of certain items of evidence for the purpose of bail but it would be better if I keep silent even on those matters. I am fortified in my this view by the following authorities :- PLD 1961 Lab. 717 ; PLD 1966 SC 340 ; PLD 1983 SC (A J & K) 10-A and PLD 1984 Sh. C (A J & K) 138.
13. In the instant case, the fatal injury is attributed to Munshi Khan the principal offender. This fact is clear from the perusal of the statement of an elder who has been cited as a prosecuting witness and whose statement, recorded under section 161, Cr. P. C. Has been read over to me by Mr. Sardar Khan Advocate. The learned Additional Advocate-General has conceded that no fatal injury is attributed to the petitioners although according to the submission of the learned Additional Advocate-General, both the petitioners participated in the murder and were seen hurling stones upon the complainant party.
Therefore, I agree with Mr. Sardar Khan, Advocate, that when a person or persons is/are not attributed a fatal injury, he/they should be enlarged on bail. In this respect, the following authorities cited by Mr. Sardar Khan lend support to my view :- . L J 1257 ; 1982 P Cr. L J 1000.; 1983 P Cr. L J 1558 and 1984 P Cr. L J 2588.
14.However, no broad proposition of law can be laid down. Suppose a person is killed by a rifle and the principal offender comes with a loaded D rifle with some other persons who participate in the crime, then all those participants may be refused bail because they come with the common intention of killing the deceased and know that the man with the rifle will use it in the heinous crime of murder.
15.The place of occurrence (the site No, 1 in the Site Plan), prima fade, belongs to the complainant party according to the statement of the Patwari recorded under section 161, Cr. P. C. And by the notes prepared by the Patwari in writing, 'which are attached with the site-plah. The learned Additional Advocate-General has highlighted this point very much and submitted that the accused party was the aggressor and first committed illegal trespass and then committed murder.
As such, they are not entitled to bail.
16. The relationship, per se, is no ground to reject the evidence of the prosecution witnesses.
Reference is made to :- 1969 P Cr. L J 1101 ; 1969 SCMR 64; 1970 SCMR 797; 1971 SCMR 659 ; 1973 SCMR 83 ; 1974 SCMR 261 ; PLD 1978 Lah. 1209 ; 1978 SCMR 136; PLD 1978 SC (A J & K) 96; PLD 1979 SC (A J & K) 23 and NLR 1982 Lah.
467.
The inmates of the house may be relied upon if their testimony rings IF true. Refer PLD 1969 SC 55, 1970 SCMR 432 and 1974 SCMR 1.
17. It is the settled rule of law that bail cannot be withheld as al punishment. I am fortified in my view by a plethora of authorities but IG would simply like to mention :- PLD 1968 SC 349 ;PLD 1972 SC81; 1981 PCr.LJ 685; 1982 P Cr. L J 1191 ; PLD 1983 SC (A J & K) 11; 1983 P Cf. L J 34 ; PLD 1983 SC (A J & K) 8 ; PLD 1984 Sh. C (A J & K) 138 and PLD 1985 SC (A J & K) 83.
18. Suppose after the trial, these petitioners are acquitted by the trial Court, there is no panacea for their long incarceration in the judicial lock-up but if they are ultimately convicted and sentenced, they may be easily arrested and put in the jail to serve their sentence awarded to them. Freedom of an individual is a very precious right and a person's personal liberty should not be snatched away from him unless it becomes necessary to deprive him of his liberty under law.
19. I would like to enlarge the petitioners on bail due to the following reasons
(a) The petitioners did not cause the fatal wound to the deceased. The fatal wound is attributed to Munshi Khan who has not applied for his bail at all ;
(b) All that the prosecution says about the petitioners is that they hurled stones on the complainant party and remained present when the deceased was murdered. First of all, it is yet to be seen whether somebody was hurt from the stones hurled by these two petitioners. So far, no overt act is attributed to these two petitioners which led to the death of the deceased ;
(c) To kill a person with a stone is, no doubt, an offence but whether it is a moot point. The view of Hazrat Ali and Imam Abu Hanifa is that if a person is killed with a stone (it may be a bigger one), the offender is liable to be punished for and the offender will have to pay This view is based upon a well-known Hadith.
' On the other hand, the Sahibain (Imam Abu Yusuf and Imam) Muhammad who rose to be the Judges) say that if the stone is a bigger one and the death is ordinarily caused by such a weapon of offence, the offender is liable to be punished for willful murder Imam Shafei also holds the same view. The view of Sahibain and Imam Shafei seems to be reasonable and plausible but the difficulty is that Hazrat Ali who is holds a contrary view. We know that our Supreme Court bailed out a person of Kotli who had killed a person with a stone due to this different of opinion between the eminent doctors of law. I have myself bailed out a student of Bhimber who allegedly killed a Sub- Inspector of Police with a 11 seer weighty stone. The argument is that if principal offender can be enlarged on bail, then why not bail out those accused persons who did not kill anybody themselves but remained present and to some extent facilitated the crime according to the prosecution story ;
(d) The possibility cannot be ruled out of consideration that it was a sudden fight. Mr. Justice Abdul Majeed Mallick, the Chief Justice of our Shariat Court granted bail to such persons in the Criminal Revision No, 13 of 1985 titled Khaliq Hussain and Sultan Muhammad Khan v. The State decided on 25-2-1985 ;
(e) According to the medical report, the death was caused due to the head injuries (injury to the skull). This means that the version in the F. I. R. That Munshi Khan hurled a stone upon the head of the deceased, it hit his skull and he died, is, prima facie, true ; No stone was recovered from the petitioners ; and
(f) In our country, there is an unfortunate tendency of roping in as many persons as possible.
Sometimes, innocent persons are also! Roped in the cases of murder.
Under these circumstances, this Revision Petition is accepted. The two petitioners shall be enlarged on bail if they furnish bail bonds in the sum of rupees two lacs each with four sureties each to the satisfaction of N any Magistrate 1st Class, Rawalakote. They shall, therefore immediately be released from the Jail after the attestation of their bail bonds and surety bonds if they are not involved in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.