On the 3rd of December 1972, at 7 p.m; complainant Muhammad Yaseen son of Ata Muhammad, Awan by case resident of Jandila, lodged an F. I. R. At Police Station Saddar Jhelum with regard to an occurrence which took place on the same day at 4 p m., under section 302/307/148/149, P. P. C.
The complainant stated that on the day of occurrence at about 4 p.m. He was going to the house of his maternal uncle Syed Walayat to milk his buffalo. When he reached near the turning of the haveli of Muhammad Ilahi, he found Fazal Hussain and laved already present there. While pasting near them he was pushed by Fazal Hussain and the com--plainant then told him to be careful and behave like a gentleman. This led to the exchange of abuses on which Javed said "catch hold of him" The complainant while abusing retreated towards the house and was chased by the aforesaid two persons. When the complainant entered his house exchange of abuses continued and on hearing the noise his brother Lehrasab Khan also came to the house. In the meanwhile Muhammad Shafi, Ghulam Mohy-nd-Din, Muhammad Khan and Mahmood accused armed with guns and the five petitioners got on the top of the house of Mahmood. The complainant party got on the top of the house of Karamat Hussain. To begin with the parties hurled stones on each other and then firing took place in which two persons, namely, Khalida and Lehrasab were killed and three others Afzal, Fazal Ilahi and Asghar A.I were injured. The com--plainant also stated in the F. I.
R. That the present petitioners who were present on the top of the roof along with four persons armed with guns continued to throw stones. The incident was witnessed by Mushtaq and Muhammad Tufail besides the injured persons.
The motive, as disclosed by the complainant in the F. I. R. Is that the water from the well of the complainant's sister Mst. Nooran Bibi, used to go to the field of Mahmood after passing through the street. About two and a half years ago Mahmood and others had closed the passage for the 1 now of the water by constructing a house. This led to a dispute between the parties, both parties were challaned under section 107/151, Criminal Procedure Code, father of Mahmood, Muhammad Fazil, was also arrested, Mahmood was then in London. Mahmood was very annoyed over the arrest of his father. Three/four days prior to the occurrence, when Mahmood returned from London, he along with Muhammad Shafi, Ghulam Mohy-ud-Din, Muhammad Khan accused and the petitioners planned this attack with the common intention of killing Khalida and Lehrasab and injuring the others.
2. On the strength of the above-mentioned F. I. R. Nine person, were arrested. The petitioners applied for bail after arrest before the learned Sessions Judge, Jhelum who turned down their request on the 12th of January 1973. They have now come to this Court for bail.
3. Malik Saeed Hassan, learned counsel appearing for the five petitioners, contended that the petitioners could not be held vicariously liable for the alleged incident. Learned counsel also contended that accept--ing the allegation in the F. I. R. Against the petitioners as it is, even then that does not constitute any offence to justify the detention of the five petitioners under section 302/307/148/149, P. P. C. Learned counsel cited a number of authorities before me. He relied on 1972 P Cr. L J and drew my attention to different cases reported at pages 427, 910 and 1257. He has also relied on Abdullah Khan v. Karam Dad Khan and another (1968 P Cr. L J 1674) and Mir Afsar and others v. The State (1968 SCMR 49). Learned counsel further argued that the conces--sion of bail is not to be withheld as a measure of punishment. He cited Manzoor v. The State (PLD 1972 SC 81).
He summed up his submissions by finally arguing not that only that the petitioners could not be held vicariously responsible but also that there is no evidence at all to connect them with the alleged com--mission of crime. He further submitted that the fact that no injury was caused to anyone by the petitioners and that even no lalkara was assigned to any of the petitioners and the possibility that the largest number of innocent male members have been implicated cannot be safely excluded, are the factors which go in favour of the present petitioners. In the light of the above, learned counsel submitted that this is a fit case where the petitioners deserve the concession of bail.
4. Mr. Abid Hassan Minto learned counsel appearing for the complainant, opposed the request of bail by the petitioners and submitted that section 144 of the Pakistan Penal Code having been made applicable, it is not a fit case where the petitioners should be released on bail. He relied on Muhammad Sharif v. Muhammad Ashraf and another (PLD 1971 SC 316) and also cited Abdus Subhan and others v. The State (1968 P Cr. L J 263). Learned counsel also submitted that an overt act has been assigned to these petitioners and, therefore, section 149 of the Pakistan Penal Code has been rightly made applicable to their case.
5. I also heard the learned State Counsel. He supported the counsel for the complainant. I enquired as to what is the stage of the case. The Investigating Officer present in Court submitted that the challan has not yet been completed on account of the fact that the Forensic Expert's report is still awaited and the Naqsha Nawees is indispersed.
6. I have considered the contentions of the learned counsel for the) petitioners. The version given in the F I. R. Is yet to be tested on solemn) affirmation and would also undergo the test of cross- examination to determine the question of vicarious liability at this stage is likely to prejudice the case of either side. It is, therefore, proper to wait till the prosecution comes out with its story before the committing Court. After some evidence is recorded then only the question of vicarious liability could be considered for the purpose of bail. I am, therefore, not inclined to give any finding at this stage on this aspect of the case.
7. Although no specific ground has been taken in the petition for the release on bail of the petitioners on account of non-filing of the challan in the Court, yet learned counsel submitted that the fact that no steps have been taken so far by the prosecution to even file an incomplete challan would be a ground for admitting the petitioners to bail. I am afraid, in a murder case if there is some negligence or delay in filing either the complete or incomplete challan in Court, that per se would not provide a good ground toe an accused person for being admitted to bail.
8. In view of the above discussion the petition is dismissed. However, I would like to make it clear that this order would not at all prejudice the case of the petitioners for applying for bail in future at a proper time.