' This is an application moved by the petitioners who have been refused bail by the learned District Court of Criminal Jurisdiction, Poonchi Rawalakot on 17-6-1985.
2. This bail application arises out of the following facts :-
(1) In the F. I. R. Lodged by Muhammad Sharif, the brother of the deceased Liaquat Hussain, it was stated that on 26-4-1985, at about 10-30 a m., when Muhammad Asghar and his father Haji Muhammad Dad Khan were passing, they killed Liaquat Hussain. It is in the F. I. R. That on the instigation of Haji Muhammad Dad Khan, his son Muhammad Asghar killed the deceased Liaquat with a .12 bore gun who died on the spot. The F. I. R. Was lodged on the same day at 3-30 p.m.
(ii) Four accused persons were challaned before the learned District Court of Criminal Jurisdiction, Poonch/Rawalakot on 1-6-1985. Out of these four accused persons, two persons are on bail while the two others are in Jail (Judicial lockup). The trial Court i,e, the District Court of Criminal Jurisdiction Poonch/Rawalakot refused the bail to Muhammad Asghar and his father Haji Muhammad Dad Khan vide its judgment, dated 17-6-1985, which is the impugned judgment in this case.,
(iii) The accused persons were arrested on 26-4-1985. They moved for their bail before the trial Court on 12-5-1985 and the learned District Court of Criminal Jurisdicion refused bail to the two petitioners before me, vide the order of the Court passing on 17-6-1985.
3. I called for the accused persons from the Judicial Lock-up to see as to whether Muhammad Asghar is a minor boy or not. I have seen the accused Muhammad Asghar. He appears to be a minor boy. The Doctor has recorded his age between 14/16 years and I would like to place him in the 16th year. I have also seen his father, Haji Muhammad Dad Khan. Although he broke his shoulder during the scuffle at the place of occurrence, yet he does not appear to be sick or infirm person. Moreover, he appears to be a man of 65 years or a bit more and he is not entitled to bail on the ground of old age.
4. Muhammad Hussain Khan, the learned counsel for the petitioner, has raised the following points :-
(a) That there is counter-version in the cross-case as a complaint has been lodged by Muhammad Asghar, one of the accused-petitioner before me. In the complaint, it has been stated that the complainant party attacked both father and son when they were on the road and when they asked the complainant party not to construct shops on the roadside or nearby the road on the land which is Crown Land and where the complainant-party had no justification whatsoever to construct shops as they had not obtained any sanction for construction of shops or for the grant of the Crown Land. On the other hand, the complainant says that a stay order had been obtained by Muhammad Dad Khan and others from the Tehsildar of Pallandari. The complainant-party seriously injured Haji Muhammad Dad Khan whose injury No, 3 is grievous according to the Medical Report. The stay order was defied by the complainant party and they started constructions without any authority_ ' The learned counsel for the petitioners has cited the following authorities on the point of cross case or counter-version :- 1976 P Cr. L J 1055, 1977 P Cr. L J 530 and 575, PLJ 1979 SC 141, PLJ 1980 Cr. C Lah. 172, 1982 P Cr. L J 49 and 1983 P Cr. L J Sh. C (A J & K) 1395.
(b) That Muhammad Asghar is a minor boy who is studying in the 10th Class, therefore, he is entitled to bail. In this connection, the following authorities have been cited by the learned counsel for the petitioners, Mr. Muhammad Hussain Khan Advocate.
1978 P Cr. L J 676, 1980 P Cr. L J 600, 1985 P Cr. L J 1676.
(c) That it is a case of self-defence because the deceased Liaquat injured Haji Muhammad Dad Khan in his shoulder and the Doctor has recorded the injury No, 3 as grievous, therefore, when the father was going to be killed, and son was justified even to kill the assailant Liaquat just to save the life of his father and to save his own life. In this connection, the following authorities, were cited by the learned counsel for the petitioner, Mr. Sardar Muhammad Hussain Khan, Advocate :- ' 1972 S CMR 682 ; 1978 SCMR 346 ; 1982 P Cr. L J 91 and NLR 1983 Criminal 54 (Lah.).
(d) That it is a case of "further inquiry" because the plea of self-defence has been taken up by the accused persons. It is yet to be established whether this plea was available to the accused or not.
Therefore, it was argued that it was a case of "further inquiry". On this point, the following authorities were cited by the learned counsel for the petitioners, Sardar Muhammad Hussain Khan, Advocate :- ' PL J1982 Cr. C AJ&K (Sh. C) 380 and NLR 1983 Cr. 54 (Lah.) and
(e) That Haji Muhammad Dad Khan is an old man and is also infirm and sick due to the injury on his shoulder. In this connection, the following authority was cited before me :- ' 1970 P Cr. L J 1034 in which case a man between 60 and 65 years, who was ascribed the part of Lalkara, was enlarged on bail. It was argued before me that the fatal injury was not inflicted by this old man and that he has been only attributed the part of abetment in the sense that he asked his son to kill Liaquat Hussain with his gun.
5. On the other hand, Mr. Muhammad Nisar Mirza, the learned Additional Advocate-General, has replied that-
(a) This is not a case of self-defence ;
(b) That the counter-version has been concocted ; (c)That in all those cases which are punishable with death or life imprisonment, bail should not ordinarily be granted to the accused persons ;
(d) That it is not a case of 'further inquiry,' and
(e) That the old age or youth per se is not sufficient to allow bail to the accused persons, particularly when they are involved in a murder case. On the point of counter-version and the 'further inquiry' the learned Additional Advocate-General has cited the following authorities :- ' PLD 1985 SC 182 and PLD 1985 Lab. 291 ' On the point of young age, the learned Additional Advocate-General has cited an unreported case of Zulfiqar v. The State, decided by Azad Jammu and Kashmir Shariat Court on 13-1-1985 in which case a young boy of 16/17 years of age was refused bail. This case was also cited on the point of self-defence.
' On the point of counter-versions, the learned Additional Advocate-General has cited an unreported ruling of the Azad Jammu and Kashmir Shariat Court titled `Subedar Gulzar Hussain v.
The State' decided on 4-9-1983 in which the plea of counter-version was not accepted by the learned Judge of the Shariat Court of Azad Jammu and Kashmir.
6. I have considered the arguments addressed at the Bar and I have also perused the record especially the F. I. R., the post-mortem report, the site plan, the judgment of the District Court of Criminal Jurisdiction Poonch/Rawalakot and the statements of P. Ws. Recorded under section 161, Cr. P. C.
7. Liaquat Hussain deceased was a previous convict as it appears from the judgment of the learned Tehsildar/Magistrate 1st Class, Pallan-dari who fined Rs, 500 to Liaquat Hussain on 26-5- 1981.
8. Moreover, Liaquat Hussain or and his associates had, prima facie, no authority to build shops or raise any construction on the Crown Land without the permission from the Revenue Authorities.
These was a stay order which was obtained by Muhammad Dad Khan, one of the accused persons before me. The tile shows that Muhammad Shafi NaibQasid went on the spot on 23-4-1985, and informed Waris Ali and Muhammad Khan about the stay order. As far as Liaquat Hussain, Faiz Muhammad Khan and others are concerned, the Naib-Qasid, Muhammad Shafi reported that they abused him and refused to be served upon. This shows that the stay order was very much in the knowledge of the deceased and the complainant-party. It is yet to be decided by the trial Court as to which party was aggressor in this case.
9. The accused persons have come up with a bold plea of self-defence. Haji Muhammad Dad Khan, the father of Muhammad Asghar is an injured person who received an injury at the place of occurrence and the Doctor has reported that his injury No, 3 was grievous. Muhammad Asghar has no doubt used a fire-arm and generally the Courts decline bail when a fire-arm is used by accused persons. As it appears, prima facie, to be a case of self-defence, so I am inclined to grant bail in this case under the special circumstances of this case. I have considered the authorities cited from both the sides but every case has got its own peculiar circumstances and no other authority is fully applicable to the facts of the other case. The site plan and the explanations attached to the site plan show that the occurrence took place in Survey No, 1676 which is recorded as a Crown Land in the Revenue Papers and which is in the possession of the Education Department. Site. No, I is the place where the dead-body of Liaquat Hussain deceased was found lying and this place is in Survey No, 1676. It is also in Note No, 1 that there is a road, passing from this land. Muhammad Asghar Khan was at Site No, 2 which is 8 Karams away from the Site No, I.
However, the Survey No, 1676 has got a road passing through it and nobody knows whether the two accused persons were attacked by Liaquat Hussain and others or Liaquat Hussain was attacked by the accused persons. It appears to be a case of "further inquiry".
10. As far as Muhammad Asghar is cDneerned, he is a boy of 16 years approximately and if he is allowed to remain in the judicial lock-up for a considerable period, he may be influenced by the other criminals who are in the Jail and who may influence his character. It would be much b:tter to enlarge hin on bail and allow him to continue his studies. If he or his father are found gailty in the long run after the conclusion of the trial, they can easily be arrested and put behind the bars. If they are ultimately aquitted then there is no panacea for their long incarceration (PLD 1983 SC (A J & K) 8).
' Under these circumstances, I hereby grant bail to both the accused persons, Muhammad Asghar and Haji Muhammad Dad Khan. It they furnish bail bonds in the sum of Rs, Two lacs each with a personal bond with four solvent sureties to the satisfaction of any Magistrate 1st class at Rawalakot (Poonch). They shall be immediately released if they are not involved in any other case, in case they furnish the bail bonds and the surety bonds.
Bad allowed.
PLD 1986 Sh. C (A J & K) 9 {{URDU TEXT}}
(a) Penal Code (XIV of 1860)- - S. 302/307/452/34 - Criminal Procedure Code (V of 1898), S. 154-Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss. 5 & 15 {{URDU TEXT}} PLD 1966 Lah. 383 ; PLD 1977 Kar. 235; 1981 P Cr. L J 857; PLD 1984 SC (A J & K) 1 ; 1975 P Cr. L J 1096; 1976 P Cr. L J 52 ; 1983 P Cr. L J 447 : 1979 P Cr. Li 593 ; PLD 1978 Lah. 1285 and 1971 SCMR 31 ref.
(b) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)- ---- Ss. 5 & 15- {{URDU TEXT}} Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)-- Ss. 5 & 15- {{URDU TEXT}} -[Witness]. [pp. 21, 221L & F PLD 1984 SC (A J & K) 1 ; PLD 1979 SC (A J & K) 78 and PLD 1979 SC (A J & K) 1 ref.
(d) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)-Ss. 5 & 15-Penal Code (XLV of 1860), S. 302/307/45434- {{URDU TEXT}} [pp. 23, 24, 25]G, H, I & 1986 N1AZ KHAN V. STATE (Muhammad Akram Khan, SH. C (A J & K) II 1969 P Cr. Li 1213 ; 1969 SCMR 625 ' ' 1972 SCMR 74 ; 1973 SCMR 363; 1969 PCr.LJ 989; 1969 SCMR 426; 1972SCMR 74; PLD 1974 SC 65; PLD 1978 Lah. 1209; PLD 1982 Lah. 577; 198 '0SCMR889.1979PCr.LJ 466; PLD 1957 Lah. 109; PLD 1969 SC 293 ; PLD 1972 Pesh. 92; PLD 1974 SC 65 ; 1980 P Cr. L J 890; 1980 SCMR 810: Meharban v.
State PLD 1978 SC (A J & K) 96 , Ma/nab Khan's case PLD 1979 SC (A J & K) 23 and 19'19 SCMR 214 ref.
(e) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)- {{URDU TEXT}} {{URDU TEXT}}