' This is an appeal against the judgment of the learned District Court of Criminal Jurisdiction Mirpur, dated 14-12-1985 whereby the District Court of Criminal Jurisdiction disallowed bail to the appellant Zaffar Ali Khan in a criminal case under section 5/15 of the Islamic Penal Laws Enforcement Act of 1974 read with sections 147/148/149, 307 and 109/114, A. P. C.
2. This appeal arises out of the following facts :-
(a) That two persons Raja Shameem Ahmad son of Jamadar Raja Muhammad Ashraf Khan aged 40 years and Raja Qamer Aftab Khan son of Raja Fazal-ur-Rehman Khan aged 29 years were murdered on 13-10-1985 at 5-15 p.m. In the Village of Kalari Tehsil Bhimber District Mirpur. The F. I. R.
Was lodged by Raja Kaiqabad Khan son of Raja Kamal Khan (who was himself injured) on the same day at 8-15 p.m. At the Police Chowki Ali Beg, Police Station Bhimber, wherein the informant stated that due to the past enmity, 11 named pergons and some 4 unknown persons ambushed and attacked him, the two deceased persons and two injured persons Pervaiz and Afrasiab Khan.
They resorted to reckless firing as a result of which Raja Shameem Ahmed Khan and Raja Qamer Aftab Khan were murdered and the informant and two other persons i,e, Parwaiz and Afrasiab were injured. The accused persons had 7-mm rifles, 12 bore guns, one Clashen-Kov rifle with them while Khushbakht and Pehlwan had brought sticks with them. Muhammad Khan Patwari had instigated the accused persons to commit the crime. It is also in the F. I. R that one car and a truck were also used during the crime .
(b) The police arrested Shahid Hussain, Zahid Hussain sons of Pehlwan, Sattar or Abdur Sattar alias Baggu, Muhammad Ameen, Muhammad Yusuf, Zaffar Ali Khan Khushbakht, Pehlwan and Muhammad Khan Patwari. It is regrettable that the police has failed to arrest Tajammal Hussain and Noor Muhammad, the two accused persons whose names are mentioned in the F. I. R. It is also regrettable that the police has not been able to recover the Clashen-Kov rifle which is stated to have been used during the tragedy ; (c)Out of these accused persons, the following four persons moved for their bail:-
(1) Zaffar Ali Khan,
(2) Khusbbakht,
(3) Pehlwan, and
(4) Muhammad Khan Patwari.
' The learned members of the District Court of Criminal Jurisdiction Mirpur allowed bail to :-
(1) Khushbakht,
(2) Pehlwan, and
(3) Muhammad Khan Potwar'.
' While they refused bail to Zaffar Ali Khan, the appellant before me.
3. Dissatisfied with the judgment of the learned District Court of Criminal Jurisdiction Mirpur, dated 14-12-1985, Zaffar Ali Khan has come up in an appeal before this Court.
4. Ch. Muhammad Taj, the learned counsel for the appellant Zaffar All Khan, raised the following points :-
(a) That although one 12 bore gun was recovered from Zaffar All Khan on 27-10-1985 but this recovery is belated one and therefore, it is not weighty;
(b) That according to the F. I. R. No firing has been attributed to the appellant; Only preverbal "Lalkara" has been attributed to him;
(c) That the appellant cannot be burdened with vicarious liability of murder because no overt act has been attributed to him in connection with the murder of two innocent persons. In this connection, he has referred to :- ' 1981 P Cr. L J 1232, 1981 P Cr. L J 1190, 1981 P Cr. L J 1232, 1982 P Cr. L J 532, 1982 P Cr. L J 1000, 1982 P Cr. L J 1057 and Tariq Shah v. The State decided me on 29-5-1984.
(d) That bail cannot be with held as a punishment. In this connection, Mr. Muhammad Taj, Advocate has referred to PLD 1983 SC (A J& K) 8.
(e) Kh. Ali Muhammad Advocate, has referred to :- 1972 P Cr. L J 1257 and 1976 P Cr. L J 1059.
5. On the other hand Mr. Muhammad Nisar Mirza, the learned Additional Advocate-General for the State, has replied :-
(a) That 49 empties were recovered from the place of occurrence. Out of those empties, 17 empties were used from 7-mm gun while 32 empties were used from the 12 bore guns. As the accused Zaffar Ali Khan had a 12 bore gun with him, so his participation in the crime is fully established by the evidence available with the police. In this connection, the learned Additional Advocate-General has referred to the F. I. R. Which includes the name of Zaffar Ali Khan and the statement of one injured eye-witness Mr. Parwaiz under section 161, Cr. P. C. Which was recorded on 15-10-1985. This statement is at page 57 of the police file. On the reverse side of the page 57, this witness has stated :- {{URDU TEXT}} ' The argument of the learned Additional Advocate-General is that this witness is an injured person and, therefore, his evidence, prima facie carries great weight as it connects the accused with the crime of murder and, therefore, it has been established prima facie, that Zaffar Ali Khan also resorted to firing in addition to "Lalkara". The F. I. R. Is not an encyclopaedia and, therefore, this fact is not mentioned in it;
(b) That this ghastly tragedy-took place in the broad daylight and there was no doubt about the identification of the Zaffar Ali Khan accused;
(c) There are three injured eye-witnesses in this case, out of whom Afra Sayyab's statement under section 161, Cr. P. C. Could not be recorded because he is said to be in Rawalpindi under the treatment of one, Brig: Nisar because according to the prosecution one bullet is stuck up in his head which has so far not been removed out of his head. There are more than two male, adult, Muslim, sane and just eye-witness in this case who connect the accused Zaffar Ali Khan with the crime of murder of two innocent persons;
(d) That the recovery of 12 bore gun from Zaffar Ali Khan is also relevant in this connection;
(e) Commenting upon the report of one Patwari of Kalari which was produced by Mr. Ch. Muhammad Taj, Advocate from the daily "Roznamcha of Events" before this Court, Mr. Muhammad Nisar Mirza, Additional Advocate-General, submitted that such certificates can be easily obtained and produced now-a-days. He argued that this document is to be disbelieved as it is a fake document. This document shows that Zaffar Ali Khan accused has now raised the plea of alibi. A plea of alibi is always considered to be weak and, therefore, it should be ruled out of consideration by the Shariat Court at this stage;
(f) That it is in the F. I. R. :- {{URDU TEXT}} It shows that the accused persons encircled and killed the two innocent persons in the most brutal way. They belonged to an unlawful assembly and had got lethal weapons with them. Zaffar Ali Khan was one of these persons who had brought a 12 bore gun with them. The question is as to why this appellant brought a 12 bore gun and for what purpose? The answer is obviously that he too had come to kill the two unfortunate persons. Moreover, he was a member of the unlawful assembly which used 7-mm guns, 12 bore guns, and one Clashen-Kov gun. The learned Additional Advocate-General in very strong words submitted that all these accused persons should have been refused bail because it is the first criminal case of Azad Jammu and Kashmir in which there is an allegation of the user of a Clashen-Kov rifle. A Clashen-Kov rifle is said to have been a very lethal Russain weapon. Then the learned Additional Advocate-General was asked by me as to why the empties of the Clashen-Kov rifle were not recovered from the place of occurrence, the learned Additional Advocate-General replied to the Court question that the Clashen-Kov rifle, when used, does not eject out empties and that there was the possibility of the empties remaining in the Clashen-Kov rifle; and
(g) That it is a clear case of vendatta in which the accused persons mercilessly murdered two innocent persons. It is unfortunate that recently the cases of firing have increased in Azad Jammu and Kashmir and that now-a-days such lethal arms are frequently being used by certain offenders simply because they are allowed bail by the Court of law. The argument of the learned Additional Advocate-General is that all those persons who formed themselves into an unlawful assembly and brought lethal weapons with them to commit the murder, should not be enlarged on bail.
6. I have heard the learned counsel for the parties and have perused the judgment of the learned Members of the District Court of Criminal Jurisdiction Mirpur, dated 14-12-1985 carefully. I have also gone through the F. I. R., the police diaries, the statements of certain eye-witnesses recorded under section 161, Cr. P. C., the post-mortem reports and other relevant medical reports.
7. There is no dispute about the proposition that bail cannot be with held as a punishment. This principle of law has been laid down in so many cases. Some of them are given below :- PLD 1968 SC 349, P D 1972 SC 81, PLD 1983 SC (A J & K) 8 and Tariq Shah v. The State (date of Institution 23-5-1984 and date of decision 29-5-1984).
8. It has been repeatedly held by the superior Courts that in non-bailable cases, the grant or refusal of bail is a matter which falls within the discretion of Courts, and this discretion has to be exercised with due care and caution keeping in view the peculiar facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail it' there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist to connect the accused person with the crime alleged against him. The Court's belief on the paint has to rest on the accusations made in the resport to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case and all the other relevant circumstances surrounding the occurrence.
9. After reading the impugned judgment, the F. I. R. The statements of the injured eye-witnesses, especially Mr. Pervaiz, the fact that 12 bore gun empties were recovered from the place of occurrence and that alleged fact that the accused Zaffar Ali Khan had brought a 12 bore gun with him at the place of occurrence, which was later on recovered from him, when seen with another fact that during the broad daylight two unfortunate persons were recklessly killed by a gang of persons who had formed an unlawful assembly and used very lethal weapons during the tragedy, I am of the view that the trial Court used its discretion in a judicial manner. This appellate Court cannot disregard the discretion of trial Court and will give due weight to the trial Court's discretion.
Here this discretion has been used according to the well-settled principles of law and has not been exercised arbitrarily, perversely, capriciously and or in disregard to the accepted principles of law or procedure, especially the procedure laid down under section 497 of the Cr. P. C.
10. Besides the impugned judgment of the District Court of Criminal Jurisdiction of Mirpur, I have considered the F. I. R. Which mentions the good name of the appellant and the statement of Mr. Pervaiz, an injured witness who has clearly mentioned that the accused Zaffar Ali Khan also used his 12 bore gun in addition to raising of Lalkaras. I agree with Mr. Muhammad Taj, Advocate that a mere proverbial Lalkara doesE not disentitle an accused the concession of bail. In fact, there is a conflict of view about raising of a Lalkara. Some Courts have allowed bail to the persons who raised Lalkaras while other Courts have refused bail considering the Lalkaras as a clear abetment of the crime of murder. In this case, prima facie, an overt act of firing has been alleged to the appellant in p addition to raising of Lalkaras and I think due to this very reason, the trial Court has refused bail to the appellant although it has not clearly said so in the impugned judgment.
11. The principle of vicarious liability is recognised even under the Muslim Law (Fiqah). Under the beading {{URDU TEXT}}the late Chief Justice of Egypt, Abdul Qadir Udah Shaheed in his Arabic Book (Here in this judgment quote from the Urdu translation by Sajidur Rehman Kandhalvi M. A.
Published by the Islamic Publications Ltd., 13-E Shah Alam Market, Lahore Pakistan page 448 is referred to) has observed :- {{URDU TEXT}} ' I quote another passage from page 249 {{URDU TEXT}} "Again in section 259 under the heading {{URDU TEXT}} the late Chief Justice of Egypt has observed {{URDU TEXT}} ' This is the general principle which is found in section 34 of the Penal Code as well. There are certain exceptions to this general rule but I am not going to discuss the whole principle in this bail matter. I simply want to stress that when a group of accused persons acting in the furtherance of the common intention, murders, one or more innocent person/persons, all the members of the group can be awarded the sentence of death. This proposition found support from a well known Hadith of the Holy Prophet Muhammad (May the peace of Allah be upon him !) who remarked that if the people of Sana (6a,o) murder one man as a group (showing common intention to kill), they would suffer the penalty of death.
12. I had allowed bail in the case of Tariq Shah v. The State due to the fact that in that case the trial Court had used its discretion arbitrarily, perversely, capriciously and in disregard to the accepted principles of law. Moreover, in that case. Tariq Shah had, prima facie, no hand in the murder of Qasim Shah deceased. Tariq Shah had injured a prosecution witness on his shoulder and not the deceased person, and therefore, that case is not applicable to the facts of the instant case.
13. Ch. Muhammad Taj, the learned counsel for the appellant has very much laid stress on my judgment in the case of Tariq Shah v. The State. Let me in the very beginning make it clear that a judgment relating to a bail matter disposes of the matter in the case in which that judgment is delivered and no authority applies on all fours to the facts of another case because every case has got its own peculiar facts and circumstances. However, in that very case, I have quoted the Bible and the Holy Qur'an to show that murder is a very henious crime. In that authority, I have, inter alia, referred to the Mosaic Law: "Deuteronomy 19 : 21 which reads :-- "And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot."
Therefore, in cases of murder, a Judge's eye shall not pity but life shall go for life if the offence of murder is brought home to the accused after a fair trial. I cannot shut my eyes to the fact that it is a case of double murder 'n which two innocent persons have been put to death in the most bruta1 way during the day time due to vendetta, as alleged in the F. I. R. And as mentioned by some eye- witnesses.
14. The other authorities cited by Ch. Muhammad Taj, Advocate and Khan Ali Muhammad, the learned counsel for the appellant are also not applicable to the facts of this case and they are distinguishable. Now I would like to discuss those authorities
(1) In the case of Fazal Haq Khan and 4 others v. The State 1972 P Cr. L J 1257, bail was allowed because no particular injury was ascribed to any individual accused and the only allegation against the accused was, that he had been seen at spot at the time of occurrence. It was, therefore, that Mr. Justice Mushtaq Hussain Munir, J. Of the High Court of Lahore allowed bail to the accused.
(ii),In the case of Mahla and others v. The State 1976 P Cr. L J 1059 Mr. Justice Javid lqbal, J. (now the Chief Justice of Lahore High Court) allowed bail to the accused because he had not caused any injury to the two deceased persons and at the best he was responsible for causing simple injuries to prosecution witnesses. This case was like the case of Tariq Shah v. The State decided ay me.
(iii) In the case of Muhammad Nawaz etc. v. The State 1981 P Cr. L J 1232 bail was allowed to two persons (Muhammad Yaqoob and Dost Muhammad) because it was a moot point as to whether the petitioners shared the common intention to commit murder of the deceased or not which matter was a case of "further inquiry".
(iv) In the case of Raja Khan and 2 others v. The State 1982 P Cr. L J 532 . Mr. Justice Rustam S. Sidhwa, J. Of Lahore High Court allowed bail to certain accused persons because they had "Dangs" with them and no overt act was attributed to them in the F. I. R. Moreover, their participation in the case of murder was a matter of "further inquiry".
(v) In the case of Javid Ahmad and 2 others v. The State 1981 P Cr. L J 160, the accused persons had some with a bold plea of self defence and it was difficult to establish as to whether the right of private defence was available to the accused persons in the fight or not.
(vi) In the case of Haji Mohabbat and another v. The State 1981 P Cr. L 31190, Mr. Justice Sajjad Ali Shah, J. Granted bail to certain accused persons whose complicity under section 34, P. C. Was yet to be determined by the trial Court. The argument advanced on behalf the accused persons as they had not participated in the crime and that they had not caused any injury to the deceased person.
(vii) In the case of Inayat Khan and 2 others v. The State 1982 P Cr. L J MO, I appeared as an Advocate-General for the State. In that case, no fatal injury was attributed to the petitioners and, therefore, their question of joint liability was yet to be determined by the trial Court. In that case, there was a dispute about a "Banna" and no fire arm was used in that case.
(viii)In the case of Faryad v. The State 1982 P Cr. L .1 1057, the material made available to the Karachi High Court showed that the petitioner Faryad was not responsible for any fatal injury caused to the deceased in that case. The petitioner was responsible for causing simple injury to some prosecution witness and, therefore, he was allowed bail under the special circumstances of the case.
' Therefore, the above mentioned cases are not applicable to the facts of the instant case.
15. Mr. Muhammad Nisar Mirza, the learned Additional Advocate-General, has cited the case of Muhamnad Rashid and another v. The State (1) wherein Mr. Justice Abdul Majeed Mallick refused bail in a case under sections 5, 14 and 15 of the Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act of 1974 read with sections 302, 307 148 and 149, A. P. C. In that case the law cited at the ,Bar was not found helpful as the facts of that case were distinguishable from the facts of the cited cases. It was observed by the learned Judge :- "It is well-settled that the cases of criminal jurisdiction are decided in the light of their own facts.
The precedents provide guidance in application of legal principles and such principles are applied carefully and cautiously in cases which are closely common and identical. The general propositions of law laid down in the precedents are undisputed but such propositions were not found attracted in the present case."
I agree with the learned Chief Justice of our own Shariat Court that each case has got its own peculiar facts and circumstances, therefore, each case is to be decided according to its peculiar facts and attending circumstances. The present case is a case of reckless firing in which two innocent persons lost their lives, Zaffar Ali Khan the appellant has prima facie, participated in the gruesome murder, therefore, I see no justification in interfering with the discretion exercised by the trial Court and up-setting the impugned judgment.
' Under these circumstances, finding no force in this appeal, it is hereby dismissed,