' This is a reference made by the District Criminal Court Mirpur in a bail application moved by the persons accused of the commission of the offences of murder and attempt to murder and sent for the trial before it by the police.
2. The brief facts forming background of this reference are that Raja Shahid Nawaz and Muhammad Rasab petitioners alongwith Shafqat Ayyaz alias Jaji are facing trial before the District Criminal Court Mirpur for the offences under section 307/447, A. P. C. And section 5/15 of the Islamic Penal Laws (Enforcement) Act, 1974 read with section 34, A. P. C. On the charge of murdering Muhammad Alain, deceased and causing injuries to the other members of the complainant-party with the intention to kill them.
3. The story of the prosecution is that the land comprising Survey No, 437 situate in village Lehri Tehsil and District Mirpur belongs to Raja Shahid Nawaz and his brother Shafqat Ayyaz co-accused but was in cultivating possession of Muhammad Alam, deceased since last 60 years from the days of the grandfather of the said owners. On 23-9-198i, the petitioners and the abovenamed co- accused with a view to taking forcible possession of the said land started ploughing the same through tractor upon which at about 4-30 p. m. Liaqat Ali, complainant alongwith his other family members namely Muhammad Alam, deceased, Mst. Nazir Begum and Mst. Kaneez Begum injured P. Ws. Went there and asked them to desist from ploughing it and taking its forcible possession. The petitioners did not pay any heed to their pleadings and started abusing them upon which the complainant and his companions while making hue and cry started running towards Chitter Pan I Bazar but all the accused pursued them in a wagon and overtook them when they had hardly reached in front of a shop of Walayat Khan in the said Bazar. The petitioners opened fire on the members of the complainant-party with the guns, they were armed with as a result of which Mst.
Nazir Begum and Muhammad Nazir P. Ws. Were injured by the firing of Muhammad Rasab, petitioner while Mst. Kaneez Begum received fire-arm injury on her right leg at the hands of Raja Shahid Nawaz, petitioner. Raja Shahid Nawaz. Petitioner and.His brother Shafqat Ayyaz. Co-accused also inflicted injuries on the person of the complainant with the butts of the guns and bricks while his father Muhammad Alam, deceased was too beaten by all accused with fist, kicks and butts of the guns. Muhammad Alam died in the hospital next day due to the beating giNen to him by the petitioners and their companion Shafqat Ayyaz:
4. The petitioners applied for their bail to the District Criminal Court Mirpur after they were sent for trial before it but the Members of the said Court could not come to unanimous decision on the question of granting or refusing bail to them inasmuch as the learned Sessions Judge rejected their bail application while the same was accepted by the District Qazi. The above difference of opinion between the Members of the trial Court expressed in their separate orders dated 12-6-1985 has led to the making of this reference for the passing of the proper order by this Court.
5. I have heard the learned counsel for the petitioners and the complainant as well as the Additional Advocate-General and have also gone through the record of the case including the police diaries and the orders made by the Members of the District Criminal Court on the bail application of the petitioners. The learned counsel for the petitioners have contended that there exists no reasonable ground for believing the petitioners of having committed either the offence of murder or that of attempt to murder and that there exist sufficient grounds on the record necessitating further inquiry into their being guilty of any of the aforesaid offences for the following reasons :-
(1) That the death of the deceased, Muhammad Alam cannot be attributed to the beating alleged to have given to him by the petitioners as bii death was caused by the rupture of his small intestine which rupture according to the opinion of the Modi given at page 27'1 in his book titled 'Medical Jusisprudence', could take place by his fall on the ground or due to his suffering from the hernia ;
(2) That the allegation of all the accused having given beating to Muhammad Alam, deceased with the butts of the "guns and fists and kicks, is not supported by the opinion of the Doctor who in his post-mortem report found only one contusion over the abdomen of the dead body of the deceased and as such in view of the rulings of the Supreme Court in cases reported as 1977 P Cr. L J 159 and 1979 P Cr. t J 45. Where the accused therein were released on bail on account of conflict between the ocular and medical evidence, the petitioners are entitled to the bail ;
(3) That no injury was found on the person of Muhammad Alam, deceased by the police officer who examined him soon after the occurrence and he only complained of the pain over his entire body which fact negatives the allegation that the petitioners had .Inflicted injuries on his person with the butts of the guns as well as with fists and kicks ;
(4) That the eye-witnesses in their statements before the police have not attributed to the petitioners the specific injury found on the abdomen of the deceased and as such they cannot be burdoned with the responsibility of the death of Muhammad Alam, deceased having resulted due to the said injury with the result that they become entitled to the concession of bail in view of the cases reported as 1976 P Cr. L J 1059, 1979 P Cr. L J 3929, 1982 P Cr. L J 1000. PLD 1985 SC (A J & K) 10 and 1978 P Cr. L 150. Even Muhammad Mara, deceased has not, in his statement recorded under section 161, Cr. P. C. Has made any accusation against Raja Shahid Nawaz, petitioner of his having caused any injury on his abdomen and as such he cannot be made responsible for his death resulting for the said injury ;
(5) That if the petitioners had intended to commit the criminal acts attributed to them by the prosecution, they would have committed the same at the field where the complainant-party had gone to stop them from ploughing the same and would not have pursued them to Chitter Pari Bazar for accomplishing their above objective ;
(6) That the land in dispute was in possession of its owner Raja Shahid Nawaz, petitioner on the day of uccurrence and not in possession of Muhammad Alam, deceased because even according to the prosecution's own case, the petitioners had demolished the hut constructed by the deceased on it a day before the incident and had taken away the material used in its construction ;
(7) That the other co-accused Shafqat Iyyaz having already been bailed out by the Shariat Court and his release having been upheld by the Supreme Court, the petitioners deserve the same treatment ;
(8) That as many as four persons of the locality had in their affidavits deposed that Muhammad Rasab, petitioner had neither come in the wagon alongwith the other co-accused on the spot nor had taken any part in the incident and thus the case reported as PLD 1977 Lab. 20 and 1977 P Cr. L J 159 are applicable where only on this ground the accused therein were granted bail ;
(9) That according to the copy of the report of the Fire-arms Expert produced before the trial Court on, behalf of Muhammad Rasab, petitioner, none of the crime empties recovered from the spot by the police, was found to have been fired from the short-gun alleged to have been recovered as crime weapon from the said petitioner :
(10) That the fire-arm injury alleged to be sustained by Mst. Nazir Begum, P. W. At the hands of Raja Shahid Nawaz, petitioner is simple in nature and on the non-vital part of her body such as thigh, therefore, the same cannot be said to have been caused with the intention to kill her so as to connect the said petitioner with the commission of the offence of attempt to murder
(11) That the death of Muhammad Alain, deceased resulting from the injuries caused by the butts of the guns is not a wilful murder as contemplated by the Islamic Penal laws (Enforcement) Act, as the butt does not come within the definition of weapon and as such this case does not fall within the prohibitive class of section 497, Cr.P.C. Under which the bail is not permitted;
(12) That from the circumstances of the case, it appears that the complainant party had intercepted and stopped the wagon at the Chitter Pari Bazar on which the petitioners were going back to their houses after ploughing the land and had attacked and thrown stones on them as a result of which the petitioners in order to save their lives and scare away the complainant party, had resorted to at random firing; and
(13) That no natural witness of the locality has supported the prosecutions against the petitioners and all the eye-witnesses are interrelated and the Members of the family of the complainant.
6. On the other hand, the release of the petitioners on bail has vehemently been opposed b) the learned counsel for the complainant and the Additional Advocate-General who have contended that from the evidence on the record there exist reasonable grounds for believing the petitioners to be connected with the commission of tile offences of murder and attempt to murder in which the bail is prohibited under subsection (1) of section 497. Cr. P. C. In this connection, they have contended that there are eyewitnesses of the occurrence who were also injured in the incident and the ocular evidence is further supported by the medical evidence and the recovery of blood- stained clay from the spot with the result that it cannot be said that there appears no reasonable ground for believing the petitioners to be guilty or the offence punishable with death or imprisonment for life and that there exist reasonable grounds for further inquiry with regard to the commission of the aforesaid offences by the petitioners. In support of the above contention they referred to PLD 1971 SC 174 and 1974 P Cr. L J 555. It was further argued by them that after the submission of report under section 173, Cr. P. C., the petitioners cannot be released on bail on the ground of further inquiry and to support their above contention they have cited PLD '1971 SC 324 and that the 'very fact of the petitioners having resorted to firing on the complainant-party go to show their intention to kill them for which reason the principle of constructive liability is attracted.
Their further contention was that the arguments advanced by the counsel for the petitioners pertain to the judging of the quality of the evidence which exercise cannot be undertaken at the bail stage by this Court.
7. The decision in this reference solely depends upon the answer to the question as to whether or not there appears reasonable ground for believing the petitioners to be guilty of an offence of murder or attempt to murder because in case the answer to the above question is found in the affirmity, the petitioners cannot be released on bail in view of the prohibition imposed by the provisions of subsection (1) of section 497, Cr. P. C. But they become entitled to the concession of bail as of right if the answer is found in the negative and there exist grounds for further inquiry about their involvement in either of the aforesaid offences.
8. After giving my due consideration to the arguments addressed by the learned counsel for the parties at the bar and going through the material on the record against the petitioners and the orders recorded by the Members of the District Criminal Court Mirpur on their bail application, I have come to the conclusion that on the basis of the material so for brought on the record against the petitioners, it cannot be said that there are, prima facie, reasonable grounds for believing them to be connected with the commission of any offence punishable with death or imprisonment for life but on the contrary there exist sufficient grounds necessitating further inquiry into their being guilty of any such offence.
9. The accusation against the petitioners is that they made an attempt on the lives of the injured P.
Ws. By firing at them through guns and that they also caused the death of Muhammad Alam, deceased by beating him with the butts of their guns as well as by giving him fists and kicks blows but in my view, no reasonable ground exists at the present moment for believing them to be guilty of any of the above charges.
10. As regards the death of Muhammad Alam, deceased it is not possible to say presently without any doubt on the basis of the evidence available on the record that the same had resulted due to the beating alleged to have been given to him by the petitioners. According to the post-mortem report be had died due to the rupture of his small intestine but such a rupture is even possible by fall of a person on the ground as well as in case of patient suffering from heyrnia. ##TE#The above causes of rupture of small intestine of person art mentioned at page 271 of the Seventh Edition, Book entitled Medical Jurisprudence by Modi. The deceased was an old man and according to the post-mortem report, haemotoma below and on left side of umbilicus was also found on his dead body. Neither any injury was noticed on the person of Muhammad Alam, deceased by the police officer who reached the spot soon after the occurrence nor any was reported to him by the deceased who only complained of pain over his body. Thus, in view of the above circumstances, the possibility' of the death of Muhammad Alam, deceased having occurred due to some cause other than injury found on the abdomen of his dead body or allegedl beating given to him by the petitioners, is not ruled out. ##TE#Even in the post-mortem report, the cause of the rupture of the small intestine of the deceased resulting in his death is not stated to be the contusion over his abdomen, and rather in reply to the query made by the S. H.
0. Afzalpur, Doctor had stated that the rupture of the small intestine of the deceased could be possible by any injury other than the one found on his dead body during its post-mortem examination. This means that presently the rupture of the small intestine of Muhammad Alam, and his consequent death due to the same cannot be certainably attributed to the injury in the nature of contusion found over his abdomen and that further inquiry is needed into the real cause of the rupture of small intestine. ##TE#The allegation against the petitioners of having given blows to Muhammad Alam, deceased with fists, kicks and butts of the guns also requires further inquiry in view of the fact that only one contusion was found over his abdomen by the Doctor conducting the post-mortem examination of his dead body because if he was beaten by all the three accused with the butts of the guns then number of injuries and not only one of the nature of contusion would have been found on his deadbody.
11. Even, if it is assumed for be sake of argument that the petitioners did give him a beating in the manner as alleged by the prosecution, it cannot be said with any amount of certainty that they had done so with the intention to kill him. Blows with the butts of the guns, fists and kicks in the ordinary course of nature are not likely to cause death of a person on whom they are inflicted nor the culprits giving such blows be presumed to have the knowledge that their above act is likely to produce such a result. There is yet another circumstance which cannot be ignored in this case while, prima facie, ascertaining the intention of the petitioners behind their alleged act of beating Muhammad Alam, deceased and which is their being armed with the guns at the relevant time.
The question does arise that if they intended to kill Muhammad Alam, deceased then why they did not use their guns for the achievement of their objective and only resorted to giving him blows with the butts of the guns, kicks and blows.
12. After discussing the prosecution's allegation regarding the petitioners having wilfully murdered Muhammad Alam, deceased, I no proceed toetake the second allegation against the petitioners that the injured Mst. Nazir Begum, Mst. Kaneez Begum and Muhammad Nazir, P. Ws. By firing at them with the intention to kill them. The abov allegation that the intention of the petitioners behind their act of firmn at the injured P. Ws. Was to kill them also, in my view, requires furthe inquiry as from the evidence on the record the possibility of the complainant-party having initiated an attack on the accused and they havin fired at the complainant-party in self-defence or with a view to scarin them away is also not ruled out. Some of the circumstances and feature appearing in the case which necessitate further inquiry into the questio as to whether the petitioners fired at the injured P. Ws. With the intention to kill them or they did so without any such intention only in self- defen may be enumerated as follows :-
(a) In his report sent to the Police Station Afzalpur for registration of the case, the Assistant Sub- Inspector Incharge Police Post Mangle has stated that he had reached the spot after receiving the information of clash having taken place between the two groups in which some persons have been seriously injured. It means that the first information reaching the Incharge Police Post Mangle about the occurrence was that of a clash having taken place between two groups resulting in grievous hurts to some persons ;
(b) From the statements of. Two eye-witnesses namely Muhammad Akram and Muhammad Riaz, recorded under section 161, Cr. P. C., it appears that they had first heard hue and cry at the place of occurrence before hearing the sounds of firing which means that the petitioners had not straightaway fired at the complainant-party on reaching the said Bazar as alleged by the prosecution but before doing that some fight or quarrel had ensued between the accused and the complainant-party ;
(e) The complainant-party, according to the prosecution, bad first gone to the field in dispute to forbid and stop the petitioners to plough and take forcible possession of the same but on being abused by the petitioners they bad come to-Chitter Pan Bazar where the. Petitioners caused injuries to them by fire-arms and butts of guns after following them in a wagon. If in fact, the complainant and his companions had first gone to the land being forcibly ploughed by the petitioners then on being abused and threaten by the petitioners their natural conduct would have been either to have returned to their houses or gone to the police station for making complaint against the petitioners and not to have gone to Chitter Pari Bazar from where the Wagon of the petitioners had to pass unless They had some ulterior motive behind their gathering at the said bazar. There is nothing on the record which may show that the only way to their houses passes through the Chitter Pan Bazar or that this was the shortest way to reach there ;
(d) In the ordinary course of human nature, if the petitioners intended to kill any of the Members of the complainant-party they could have done so when they had -gone to the field to stop them to plough the land which was owned by them and even according to the evidence on the record, had been occupied by then forcibly one day prior to the occurrence but they did not resort to any criminal act towards them there except hurling abuses on them but they allegedly pursued them in a wagon to a public place such as Chitter Pan Bazar situated at a distance of more than 1,000 feet and launched an attack and opened fire on them to achieve a purpose which could otherwise, be easily and safely achieved earlier when the complainant-party bad gone at the foresaid field ; (e)According to the report submitted to the trial Court by the police under section 173, Cr. P. C., Shafqat Ayyaz, co-accused is alleged a have been injured during the occurrence which fact also finds support from the report of the Medical Officer who examined him after his arrest. The injury to the said co-accused is neither mentioned in the F.
1. R. Nor explained in the report.
( f ) According to the prosecution, the petitioners; had committed criminal trespass in the land bearing Survey No, 437 situate in Village' Lehri,lehsil and District Mirpur by forcibly ploughing the same on the day of occurrence which act of their led to the incident in which Muhammad Alam, was killed and some other members of the complainant-party ware injured but according to the entries of the copy of laasra Girdawari' of the aforesaid land filed with the challan it was in possession of Raja Shahid Nawaz, petitioner since Kbarif, 1980;
(g) The petitioners did not use their guns for harming either the 'complainant or his father with whom there could be any dispute over the possession of the said land but fired only at their women-folk and a stranger who had incidentally come to the said bazar. As the human nature is, ordinarily the complainant or his father would have been the victim of their firing, if the petitioners had the intention to kill any of the members of the complainant-party . And (h)The fire-arms injuries received by the prosecution witnesses allegedly at the hands of the petitioners have not been described as dangerous to the life by the doctor and the injured persons have completely recovered and are pursuing their normal vacations.
13. For the reasons stated above there exists no reasonable ground connecting the accused with the commission of the offences with which they are charged and that the question as to whether the petitioners has come to the place of occurrence in a wagon in pursuit of the Members of the complainant-party with the intention to kill them and in furtherance of their above intention had caused the injuries to them resulting in the ,death of Muhammad Alam, deceased or the complainant-party was aggressor and had initiated an attack on the petitioners, needs further inquiry for which reason, the petitioners become entitled to be released on bail till such inquiry.
Accordingly the petitioners are ordered to be released on bail provided they furnish bail bound in the sum of Rs, 1,00,000 each with one surety each to the like amount to the satisfaction of any First Class Magistrate, Mirpur.