MUHAMMAD NAWAZ ABBASI, J.- The petitioners namely Qurban Hussain and Anwar Hussain accused in a case under Section 302/34 PPC registered against them FIR No. 146/1993 dated 29.11.1993 with Police Station Kallar Syedan, Rawalpindi, after refusal of the bail by the learned Addl: Sessions Judge, Rawalpindi vide order dated 25.1.1994, have moved this petition before this Court for the grant of bail.
2. The relevant facts for the disposal of this petition as contained in the First Information Report lodged by Sajjad Ahmad, real brother of Mohammad Imran and son of Adalat Hussain deceased at 11.35 p.m. On 29.11.1993 are that at 5.00 p.m. On the same day when he was present at home, Mst.
Irshad alias Shado, his piece who is wife of Anwar Hussain petitioner threw the water in front of the house of complainant and on being forbidden by Mst. Mubarik Jan mother of Sajjad Ahmad exchanged abuses with her. During the altercation between the two ladies, Mohammad Imran brother of first informant appeared in the street whereas Mohammad Iftikhar alias Billu son of Qurban Hussain petitioner and Aamer son of Anwar Hussain petitioner, both armed with 30 bore Pistols along with petitioners empty handed raising lalkaras also came in the street from their house. Qurban Hussain and Anwar Hussain, the present petitioners instigated their co-accused namely Aamer and Iftikhar Ahmad to do away with all of them. Aamer fired two successive shots at Mohammad Imran brother of Sajid Hussain complainant causing him injuries on his abdomen and chest whereas Adalat Hussain father of complainant in the meantime when reached near the gate of have after attending a funeral was fired at twice by Muhammad Iftikhar and both Muhammad Imran and his father Adalat Hussain succumbed to the injuries caused to them by Aamar and Iftikhar respectively at spot.
3. In addition to the immediate cause of quarrel between the ladies, the motive as disclosed in the FIR behind the occurrence was that Anwar Hussain petitioner wanted had of Mst. Sheedan daughter of Adalat Hussain deceased for his son namely Masood but Adalat Hussain refusing to accept this proposal turned down the demand of Anwar Hussain who being revengeful was instrumental to this fateful incident.
4. Qurban Hussain had Anwar Hussain petitioners are real brothers ' whereas Aamar accused is son of Anwar Hussain and Iftikhar Hussain accused is son of Quran Hussain petitioner. Mst. Irshad alias Shado niece of Sajjad Hussain complainant is wife of Anwar Hussain. The first informant and Imran deceased are real brothers and Adalat Hussain is their father. The parties are interlinked and closely related. There was no previous enmity between them in the background except the grudge of the petitioners for the rejection of the proposal of marriage of Masood with Mst. Sheedan.
5. Sardar Muhammad Ishaq Khan, Advocate, the learned counsel for the petitioners raising the following contentions urged bail for the petitioners:-
(i) That the occurrence being the result of sudden flare up due to the qurrel between the ladies, the question of vicarious liability of the petitioners and application of section 34 PPC shall be subject to a detailed scrutiny;
(ii) That Qurban Hussain petitioner being an old person of 75 years of age and Anwar Hussain of the age of about 67 years, factually have played no role in the occurrence but being elders of their families were falsely involved in the case.
(iii) That in the circumstances of the case and inview of the role of proverbial lalkara assigned to the petitioners, the case against them falling within the ambit of section 497 (2) Cr.P.C, needs further inquiry into their guilt entitling them for the concession of bail pending trial.
6. Syed Sajjad Hussain Shah, A.A.G, opposed the grant of bail on the ground that raising of lalkara by the petitioners amounted to instigate their co- accused to commit the crime and the common intention of the petitioners is proved from their conduct with the exclusion of all possibilities of false implication.
7. Ch. Zamurd Hussain, Advocate, learned counsel for the complainant added that Aamar and Iftikhar co-accused of the petitioners while acting at the instigation of the petitioners under their influence committed aggression taking life of two innocent persons, hence they effectively participating in the occurrence have made themselves equally responsible for the commission of offence by virtue of section 34 PPC.
8. I have given due consideration to the arguments advanced by the learned counsel for the parties and also examined the record.
9. The sole point to be considered in the circumstances is as to whether reasonable grounds exist to believe that the petitioners were vicariously liable to the commission of offence there are sufficient grounds requiring further inquiry into their guilt at the trial entitling them to the concession of bail as of right.
10. As per prosecution story given in the first information report, the fateful incident was the result of a quarrel between the ladies having taken place over a petty matter of throwing water by Mst.
Irshad in front of the house of complainant. There is nothing on record to suggest that prior to the present occurrence at any occasion an altercation had taken place between the male or female members of the two families in the matter relating to the alleged grievance of Anwar Hussain petitioner, Therefore, the murder of Muhammad Imran during the course of quarrel between the ladies and the murder of Adalat Hussain on his reaching the spot are not suggestive of premeditation. The strained relations between the parties if any after refusal of the marriage proposal in question, whether in fact was motive for the present occurrence and the petitioners having the grudge against the family of the complainant, instigated their young sons to kill the deceased or they simply on coming to know about the quarrel between the ladies being elders of their families came out of their houses uttering proverbial lalkaras with no intention to commit the murder or to share the common intention with their co-accused to cause death of Imran and Adalat Hussain, shall be determined at the trial, undoubtedly Adalat Hussain deceased had not yet reached the spot when Imran was Fired at by Aamar co-accused of the petitioners and definitely in the begining he could not be the target of the accused and was attacked by Iftikhar Ahmad when he after attending a funeral procession suddenly reached the gate of have. Similarly, the first informant, a real brother of Imran and son of Adalat Hussain for whom the accused had no sympathy, despite his presence at the spot was caused no damage. These important features of the case are essentially to be looked into to determine as to whether the motive given by the prosecution or the quarrel between the ladies with no other background of enmity was the real cause of occurrence. The common intention and the vicarious liability of the petitioners being a matter of evidence cannot be judged in the true prospects and answered positively at this stage.
Therefore, the question whether co-accused of the petitioners acted independently or under the influence and instigation of the petitioners who as per allegation uttering lalkaras associated them with their own motive, requires a detailed probe and scrutiny to fix their liability as participant of the occurrence, it is not clear from the facts of the case as disclosed by the prosecution that two murders were in fact the outcome of earlier strained relations between that parties or the only cause was the quarrel between the ladies hence this suspicious character of the case apparently created some doubt bringing the case within the ambit of section 497 (2) Cr.P.C. Thus it is not possible without the appreciation of evidence in the background of the crime and its commission to say that shouting of lalkara in the given facts will no doubt by virtue of section 34 PPC is enough to constitute a reasonable ground for the commission of an offence.
There can be no had and fast rule to suggest that uttering of lalkara is always considering an effective role played as a proof of common intention. The false implication is to be considered with reference to particular situation and the context in which it is uttered. Sometime, mere lalkara be as effective as direct role of causing injury whereas sometimes," it may simply amount to a purposeless slogan with to intention to commit crime, hence in such like cases it is always a matter of judicial discretion to examine the legal consequences of lalkara.
11. The bail to a person of an accused of a non-bailable offence is to be allowed as of right under the provisions of sub-section 2 to section 497 Cr.P.C, if no reasonable grounds exist for believing that he has committed a non-bailable offence or there are sufficient grounds for further inquiry into his guilt. The bail of an accused of a non-bailable offence or of the capital charge is not withheld only in the discretion or for the reason that maximum sentence provided for the offence is death or life imprisonment.
The liberty of a person being a very valuable right cannot be curtailed either through a criminal charge or otherwise unless there are reasonable grounds and compelling circumstances to justify the same. There is no denial to the fact that bail in such like cases cannot be allowed as of rule but at the same time it cannot be withheld in suitable cases. The refusal of benefit of doubt available to an accused even at bail stage is an irreparable loss to a person who after undergoing detention is ultimately acquitted for want of sufficient proof of allegation, particularly in the cases of the nature where prosecution at the trial by producing further evidence is not in a position to improve the case, hence the refusal of bail to an accused in such like cases is not in the interest of safe administration of criminal justice.
This cardial principle of criminal administration of justice in fact is based on the concept of justice in Islam which is to be observed more consciously and carefully. The benefit of doubtful features of a case invariably are required to be given full effect while deciding the ancillary matters in a criminal case. The benefit of doubt, if any in the case favourable to an accused cannot be withheld in the exercise of discretion of the Court at any stage. Islam damads the dispensation of justice in the following manner: "Justice is the part of the covenant with which Allah has bound the Muslim nation requires it to deal with other people on the basis of absolute justice which is never affected by feelings of love or hatred, or by a relationship, interest or feelings of any type, It is justice which is based on the duty of remaining steadfast in devotion of Allah alone. No influence are ever allowed to tilt the balance of justice, especially when believers are mindful that Allah watches over them and knows what is in the bottom of their hearts." The Honourable Supreme Court of Pakistan in Manzoor and 4 others Vs. The State (PLD 1972 S.C. 81) observed as under: "The High Court did not follow correct principles in refusing bail. It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. Bail in non-bailable cases is a matter within the discretion of Courts which has to be exercised with due care and caution or the 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 if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to discharge those reasonable grounds and the court has to examine the date available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. TL Court's belief on the point has to rest on the accusations made in the report 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. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offence punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistake relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
12. The Investigating Officer present in Court states that the challan against the petitioners has not been submitted so for want of arrest of Iftikhar, their co-accused. The learned counsel for the complainant sought dismissal of the petition on the ground of obscuration of Iftikhar Ahmad.
13. I am afraid, the petitioners should not suffer for non-completion of investigation and submission of challan or for absconsa of their co-accused.
14. Having examined the material and making tentative assessment of the evidence available against the petitioners, the application of section 34 PPC vis-a- vis the role of uttering lalkaras by them with no other overt act apparently not amounting to abetment cannot be suggestive of a positive proof or true import of common intention of the petitioners and of their commission of offence without appreciation of evidence and drawing a conclusion of guilt against them by the trial Court. Needless to say that the prosecution even at bail stage has to discharge its onus that a person accused of non-bailable offence is not entitled to the concession of bail either on the ground of further inquiry or otherwise however, the Court without deeper appreciation of the evidence in the case can in suitable cases on the basis of tentative assessment of the material placed on record is empowered to grant bail to an accused person.
15. For the foregoing reasons, there being sufficient scope of further inquiry into the guilt of the petitioners, they having earned a right of concession of bail under sub-section 2 to section 497 Cr.P.C, are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs.
50,000/- with two sureties each in the like amount to the satisfaction of A.C. Duty Magistrate, Rawalpindi.