' This order will cover both the appeals entitled above as they arise out of the same order of the District Criminal Court Kotli made in acase commonly registered against them at the Police Station Nakyal but later on transferred to the Police Station Kotli.
2. The brief facts forming background to the above appeals are that one Mir Baz resident of Baggian lodged a report at the Police Station Nakyal in which it was alleged that he being a supporter of the Muslim Conferences had voted for its candidate in the list election of the Legistative Assembly on account of which Lal Hussain, Salem Din, Haliz Abdul Mani and some other persons belonging to the `Gujar Beraderi' and supporters of Maulvi La! Muhammad, a defeated candidate in the said election entertained grudge against him and for that reason had stopped his drinking water and also forcibly took away his goats. Being not satisfied with the action taken by the, police on his above report be made a complaint before the Sub-Divisional Magistrate Nakyal to the effect that he apprehended danger to his life and property at the hands of the above named persons on which the said Magistrate directed the Tehsildar to go to the spot to take action on the abortive complaint. The Tehsildar went on the spot on the evening of 5-6-1985 alongwith few police constables and summoned the persons named by Mir Baz, complainant in his report through police constables but they did not appear before him. The Tehsildar was also informed that the members of the `Gujar Beraderi' are gathering near the house of the said complainant and are planning to set his house on fire on which the Tehsildar informed the Sub-Divisional Magistrate Nakyal about the seriousness of the situation and asked him to send more police force for his help.
The Sub-Divisional Magistrate Nakyal, on the above request of the Tebsildar, sent 20 to 25 police constables accompanied by two police officers of the rank of Sub-Inspector and Assistant Sub- Inspector who reached the spot in the early hours of the morning of 6-6-1985 On knowing about the arrival of the police force, Mouivi Lai Muhammad who is also one of the accused in this case, accompanied by number of persons, arrived at Sandara Bazar where hundred of his supporters and `Beraderi' men from the nearby places have already gathered and raised a lalkara' that no Rajput should escape alive and that they would take revengetoday upon which his supporters launched an attack on the persons belonging to the Rajput Beraderi' and accompanying the Tehsildar. Out of them Muhammad Siddique, petitioner gave a stick blow on the head of Dil Muhammad, deceased who was then beat 'another stick blow by Bagga, petitioner. The deceased fell down on the ground whereupon Feroze and Ibrahim, petitioners started beating him with the sticks when Muhammad Ishaque, complainant, Fazal Hussain, Muhammad Saleem, Muhammad Latif and Muhammad Rafique, P. Ws. Came forward to rescue and pick-up Dil Muhammad, deceased they were also injured by the assailants out of whom Abdul Ghani and Maulvi Lal Muhammad fired pistol shots causing injuries to them. On the intervention of the Tchsildar and police men, the assailants went away from the spot. Dil Muhammad injdred person died while he was being carried to the hospital.
3. Muhammad Ishaque son of the deceased lodged the report of the occurrence at Police Station Nakyal on which a case under section 5/15 of the Islamic Penal Laws (Enforcement) Act and sections 307/147 and 148/ 149, A,P.C. Was registered against the petitioners and other accused named in the F. I. R. The petitioners and other accused arrested by the police applied for bail to the District Criminal Court Kotli which vide its orders dated 12-9-1985 and 2-10-1985 refused bail to the petitioners while granted the same to the other accused namely Muhammad Sadiq, Muhammad Saleem, Lal Din, Sahib Din, Muhammad Latif, Muhammad Hussain, Hafiz Abdul Ghani, Muhammad Yusuf, Lal Hussain, Fazal Hussain and Muhammad Sher. Being dissatisfied with the above orders of the trial Court the petitioners have filed the above appeals before this Court.
4. I have heard the learned counsel for the panics and have also gone 'through the record of the case. It has beeh argued by the learned counsel for the petitioners that the false case has been concocted against the petitioners on account of the political rivalry and Beraderism'. In this connection he has contended that the petitioners belong to the `Gujar Beraderi' and were the supporters of their caste fellow Molvi Lal Muhammad who fought last election of the Legislative Assembly against the candidate of the Muslim Conference while the complainant party belongs to the `Rajput Beraderi' which was supporter of its `Beraderi' candidate nominated by the Muslim Conference for election to the said assembly. He has further contended that it was complainant party who had attacked the petitioners and other accused and caused fire-arm injuries to at least 3 persons namely Muhammad Sher. Muhammad Hussain and Fazal Hussain about which occurrence an F. I. R. Was also lodged with the Police Station Kotli by Muhammad Sher in which Muhammad Ishaque, complainant in this case was also named as one of the accused and as such it is a case of counter version requiring further inquiry as to whether the complainant party or the accused were the aggressor for which reason the petitioness are entitled to the concession of bail till such inquiry. He has further contended that according to the post-mortem report the death of the deceased had resulted from the stick injury on his head which has been attributed to Muhammad Siddique, petitioner and thus the other petitioners who are alleged to have caused only simple injuries on the person of the said deceased cannot be held responsible for his murder and are entitled to the concession of bail.
5. On the other hand, the bail to the petitioners has been opposed by the Additional Advocate- General on the ground that they have inflicted stick blows on the person of the deceased resulting in his death and as such they all are vicariously liable for the commission of the offence of murder entailing punishment of `Qisas' in which the bail is prohibited by law.
6. After giving my due consideration to the arguments addressed at the bar and going through the statements of the prosecution witnesses recorded under section 161, Cr. P. C., police diaries and other relevant record of the case, I am of the view that the petitioners except Muhammad Siddique deserve to be released on bail as further inquiry is needed to find out as to whether or not they were connected with the commission of the crime of murder of Dil Muhammad deceased. From the statements of the independent witnesses recorded by the police such as Raja Muhammad Siddique, Tehsildar, Muhammad Nazir, Sub-Inspector and Mushtaque Hussain, Assistant Sub- Inspector, prima facie, following facts emerge therefrom :-
(1) That on the complaint of one Mir Baz, the Tehsildar and police force had gone on the spot under the order of the Sub-Divisional Magistrate Nakyal and the Tehsildar attempted to make arrest of some members of the `Gujar Beraderi' whereupon the large number of persons belonging to the said 'Beraddri' gathered on the spot probably to resist the arrest of any member of their 'Beraderi" ;
(2) That similarly large number of persons belonging to the Rajput' Beraderi' but less than that of the Gujar Beraderi' had also gathered on the spot and were interested in the arrest of the persons of the Gujar Beraderi' against whom a complaint has been made by Mir Baz who also happened to be the member of the 'Gujar Beraderi' but supporter of the candidate of Muslim Conference in the last election of the Legislative Assembly ;
(3) That while the subject of complaint of Mir Baz namely the stoppage of the drinking water of the complainant by some members of `Gujar Beraderi' was being discussed with a view to settling it between the Tehsildar and the leader of the `Gujar Berader? Namely Moulvi La! Muhammad at Sanders Bazar, the members of the aforesaid Beraderis' all of a sudden clashed with each other as a result of which Dil Muhammad:, decea,ed and other four to five persons of the `Rajput Beraderi' were bud while on the side of `Gujar Beraderi' three persons namely Muhammad Sher, Fazal Hussain and Muhammad Hussain also received fire-arm injuries who were carried to the Kotli Hospital for treatment and
(4) That the report of the occurrence was also made by Sher. Muhammad against the coniplainant party in which it was alleged that the complainant party had launched an attack and injured bun and his 'Beraderi' members.
7. In view of the above facts, prima facie, appearing on the record, it becomes a case of sudden fight and clash isetween the two rival groups without any pre-meditation and pre-concert for committing the commissio of the offence of murder or attempt to murder with the result that ever accused taking part in the occurrence resulting in the death of Di Muhammad, deceased is individually responsible for his act and th question of the application of the principle of vicarious liability in th present case requires further inquiry. When question of grant of bail t the petitioners except Muhammad Siddique is considered in the light o the fact that the accused in this case are individually and not vicariously liable for their criminal acts committed by them during the occurrence under discussion they are found to be entitled to the concession of bai as the case of each of there falls within the scope of the provisions o section 497(2), Cr. P. C. The fatal injury which is shown to be No, 5 in the post-mortem 'report of the deceased is not attributed to anyone of them but to Muhammad Siddique, petitioner alone. The eye-witnesses of the prosecution have clearly stated that it was Muhammad Siddique, petitioner who had first of all gave a stick blow on the head of the deceased. The other injuries numbering four found on the person of the deceased are of simple nature caused by blunt weapon out of whom two are contusions and one is abrasion/which can be even caused by the fall as well as by dragging a person on the ground. The nature of these injuries are such that they neither can cause the death of a person receivin such injuries nor can contribute to his death. Moreover, the fact that these are only four in number necessitate inquiry as to whether they were caused by all the petitioners or some of them because it is alleged in the F.
1. R. And. The statements of the eye-witnesses that Dil Muhammad, deceased was beaten mercilessly by these petitioners namely Feroze Din and Muhammad Ibrahim, when he had fallen on the ground after receiving stick blows at the band of Muhammad Siddique and Bagga, petitioners.
8. For the reasons stated above, exercising powers under section 498, Cr. P. C., the bail is allowed to Bagga, Feroze Din and Muhammad Ibrahim, petitioners who are ordered to be released on Nal provided they furnish bail bonds in the sum of Rs, 1,00,000 (Rs, one lac only) each with one surety of the like amount each to the satisfaction of trial Court.
9. As regards Muhammad Siddique, petitioner, there is evidence o record showing that Dil Muhammad, deceased had died due to the injury given by him on his :head with a stick. The above injury has bee described as dangeroas by the doctor and in view of its nature and delicate and vulnerable part of the body of the deceased on which it was caused, prima facie, it appears that he at least knew that it was likely to cause the death of the deceased. Thus, prima facie case of the commission of offence in which the bail is prohibited, is made out against this accused petitioner, with the result that his request for releasing him on bail cannot be acceded to and accordingly the bail is refuse to him.
PLD /986 A J K Shariat Court 61 {{URDU TEXT}}
(a) Criminal Procedure Code (V of 1898)- - S. 497 (5)-Azad Jammu and Kashmir Islamic Penal Laws (Enforcement Act (IX of 1974), S. 5-Penal Code (XLV of 180), Ss. 147, 148, 149 & 109- 5 ,r-ile,kji 0631. Sit:4 5 [p. 71],1 - S
(b) Criminal Procedure Code (V of 1898)- - S. 497(5)-Azad Jammu and Kashmir Islamic Penal Enforcement Act (IX of 1974), S. 5-Penal Code (XLV of 186 Ss, 147, 148, 149 dt 109- ..Tr Les( 6fti cru Po j14.11-:-J44% L i043 ,= 11. Ja 1.14 4.)it:1 01 2 crs-) Le-j4 4...)6,31- cod Lt. -.Tr Les( 6fti cru Po j14.11-:-J44% L i043 ,= 11. Ja 1.14 4.)it:1 01 2 crs-) Le-j4 4...)6,31- cod Lt. -41 161 C.g.4 1,s
(c) Criminal Procedure Code (V of 1898)- -- S. 497-Azad Jammu and Kashmir Islamic Penal Laws Enfor ment Act (IX of 1974), S. 5-Penal Code (XLV of 1860), Ss. 14, 148, 149 & 109- a-.)1 [p. 72]C - t Lir Lt.t: r .es4 {{URDU TEXT}}
(d) Criminal Procedure Code (V of 1898)- -- S. 497-Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act ( IX of 1974), S. 5-Penal Code (XLV of l60), Ss. 147, 148, 149& 109- {{URDU TEXT}}
(e) Criminal Procedure Code (V of 1898)- -- S. 497-Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act ( IX of 1974), S. 5-Penal Code (XLV of 1860), Ss. 147, 148, 149 & 109- {{URDU TEXT}} [p. 721E
(f) Criminal Procedure Code (V of 1898)- S.497(5)-Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act ( IX of 1974), S. 5-Penal Code (XLV of 1860), Ss. 147, 148, 149& 109-