' The petition is addressed against the order of District Criminal Court, Rawalakot-Poonch, passed on February 28, 1991, whereby the accused-petitioners were declined their request for release on bail.
2. The accused-petitioners are facing charge of double murder, attempt to murder and causing hurt, by forming unlawful assembly as contemplated under sections 5, 15, Islamic Penal Laws Act read with sections 307, 147 148 and 149, A.P.C.
3. It is alleged that Misri, the complainant and his family were attending marriage of Guizar Khan, their close relative when Muhammad Nasim informed him that Ali Hussain, Noor Muhammad, Muhammad Hussain, Riaz and Manzoor, accused trespassed in their land and were ploughing the samet.,Misri Khan, Muhammad Sharaf, Muhammad Naeem, Muhammad Azad, Muhammad Akhtar and Muhammad Farooq went on spot to verify the report. They saw the accused present on the site. They were armed with guns except Muhammad Hussain who carried a hockey. Muhammad Naeem, Muhammad Sharaf reached earlier when Muhammad Naeem asked the accused as to why they trespassed in their land. Ali Hussain replied that he would let them know the reason. On this, Ali Hussain fired on Muhammad Naeem who fell down. Noor Muhammad raised `lalkara' and fired on Muhammad Sharaf who also 'fell down. Muhammad Nasim portested by raising hue and cry as to why his brothers were being murdered. Riaz accused fired on him, on which he also fell down. Misri and others also raised hue and cry. The accused continued firing indiscriminately in consequence of which Muhammad Naeem died on the spot. Muhammad Sharaf expired on May 10 in the hospital. Muhammad Naseem who received pellet injuries on umbilicus, scalp and forearm, however, survived due to getting timely medical aid.
4. Raja Sher Muhammad Khan, the learned counsel for defence, argued that it was not a case of common intention as ascribed by the prosecution, as the petitioners were not attributed any overt act because none of them was responsible for the death of the deceased persons. The learned counsel cited 1990 PCr.LJ 928, 1983 PCr.LJ 745, 1986 PCr.LJ 446, PLD 1981 SC (AJ&K) 10, 1979 PCr.LJ Note 16 at p.11, PLD 1986 SC (AJ&K) 105 and 1983 PCr.LJ 1487, in support of his contentions. The learned Additional Advocate-General opposed the aforesaid contentions and argued that Muhammad Manzoor was the leader of the accused party who initiated the whole plan to encroach upon the land of the complainant and ploughed it forcibly. The presence of the other accused-petitioner was also proved as he was injured in the incident. The learned counsel for the complainant argued that the presence of the accused-petitioners, prima facie, was well-estabilshed. They accompanied the principal culprit on the spot. They were armed with deadly weapons. Their action of trespass and forcible occupation of the land of the complainant was the result of premeditation and preplan. In the circumstances, the accused-petitioners deserved no concession of bail.
5. It is an accepted rule of law relating to grant or refusal of bail that each case is decided in the light of its own facts. The precedents do provide a guideline in case of criminal jurisdiction, particularly relating to bail but such guidelines are to be followed when these are found aptly applicable to the case under consideration. This view finds support from Shabbir Hussain Shah's case PLD 1986 SC (AJ&K)
105. The authorities cited by the learned counsel for the defence, are to be construed in the light of peculiar facts of those cases. For unless the facts of the cases cited at the Bar are found close to each other, the precedents, would be of no help to the case of the petitioners.
6. The facts listed above, prima facie, suggest that the accused persons arrived on the scene to encroach upon the land of the complainant. Four of the accused were armed with guns while Muhammad Hussain, one of the accused-petitioners was armed with hockey. The alleged action of the accused-petitioners, prima facie, suggested that encroachment in the land of the complainant was made in consequence of premeditation and pre-plan.
7. The learned counsel emphasised that none of the accused-petitioners was ascribed infliction of injuries caused to the deceased. May be that they were not specifically ascribed the injuries, but the fact remains that the concluding part of the first information report suggests that the accused collectively fired on Muhammad Naeem and gave him beating, as a result of which he expired on the spot. Muhammad Naeem suffered various injuries on different parts of his body. In the circumstances, it is not permissible to discriminate the case of the petitioners to exonerate them, prima facie, at this stage.
8. The scope and meaning of common intention is to be construed in the light of the facts of each case. Presence of circumstances of each case enables the Court to hold whether such circumstances were sufficient in the eye of law to accept or reject the attribution of common intention ascribed to the accused person. This view finds support from Chiragh Din's case PLD 1967 SC 340. It was a case of bail. Four accused-appellants pressed the plea for their release on bail, on the ground that they were ascribed abetment in the act of murder only by shouting galkara'. The learned Chief Justice Mr. Justice A.R. Cornelius who spoke for the Court, declined to interfere in the order of the High Court resulting in rejection of bail application as, in his view, the question of common intention or abetment must be decided by the trial Court on an appreciation of the facts including the degree of interest in the crime possessed by the person who shouted `lalkara' and the part he played in the background of the affair. The learned Judge observed that there were circumstances in which mere presene on the scene of the crime was deemed sufficient overt act, to support conviction by application of section 114, P.C. It was held that shouting of a galkara' may, in such circumstances, have effect as a further overt act of abetment. The bail was declined.
9. In Matloob Hussain Shah's case 1983 PCr.LJ 745, the accused was ascribed his role as of holding the deceased when the principal accused fired on him with his revolver. The learned Judge in the High Court granted bail to the accused as, in his view, his name was not disclosed in the dying declaration, in addition to exoneration of 2 other accused who were let off by the investigating officer, for want of sufficient evidence. The learned Chief Justice of the Supreme Court declined to interfere in the order of the High Court as, in view of the Court, the discretion exercised by the High Court was not found warranting interference of the Supreme Court.
10. In Fazalur Rehman's case PLD 1981 SC (AJ&K) 10 the trial Court allowed bail to one out of 3 accused. The accused was bailed out mainly on the ground as his right hand was found crippled. It was observed that the accused was incapable of using his right hand contributing towards the death of the deceased. In the High Court, Sultan, another accused was also granted bail as no sufficient evidence, prima fade, was found to connect him for any overt act in the murder of the deceased. In the Supreme Court, the orders of the subordinate Courts were upheld as the same were found to have been passed in due exercise of discretion. The facts of that case are quite distinguishable from those of the present case as that was a case of sudden flare up anc] fight. In that case, the deceased was also attributed firing on the accused with his pistol.
11. In view of the aforesaid circumstances, the petitioners are not found entitled to the concession of bail. Their application is, therefore, rejected.