' MUHAMMAD YOUNAS SURAKHVI, J.--- This appeal, as of right has been filed to call in question the order recorded by Shariat Court on May 30, 1995, whereby the concession of bail was declined to the appellants, herein.
2. The prosecution case, as disclosed in the F.I.R., briefly stated, is that on March 13, 1994, at about 3- 30 p.m. Complainant, Sardar Muhammad Nazir Khan alongwith Abdul Safoor, Sardar Akram Khan and Zubaid Khan was coming back from the house of Sardar Muhammad Akbar Khan son of Sher Afzal Khan after Fatia Khani at the sad demise of his relative and when they reached at a place known as Dheriwala, one Ijaz Khan and Mst. Zeenat Begum also joined them. All these persons were passing through the land of Sher Afzal Khan when they saw Muhammad Ashraf Khan son of Fayaz Khan armed with klashnikov, Tariq son of Ashraf Khan with .12 bore gun, Naqi Muhammad Khan son of Fayaz Khan with .12 bore gun, Shaveed carrying a hatchet and Zahoor with a stick in his hand who were waylaid. On seeing the complainant and his companions the accused shouted Lalkara that no one out of the complainant party would be allowed to go alive. The accused in prosecution of the common object launched an attack on the complainant party with the intention to do away with their lives. Out of the above accused persons, Muhammad Ashraf Khan, fired from his klashnikov which hit the mouth of Zubaid who fell down on the ground. Tariq accused fired at Abdul Safoor who sustained injuries on account of this firing. Naqi Muhammad Khan injured Ijaz Khan with his gun, Waqar fired at Zeenat Begum who also received injuries. The accused party continued indiscriminate firing. It is alleged that the complainant by laying on the ground saved himself. He rushed to the house of Shaukat Hayat Khan and raised hue and cry, upon which his brother Sohail Ahmad Khan, Aftab Ahmad Khan, Pervaiz, Raees Khan and Waseem Sohail Khan were attracted.
When they reached in the land of Shaukat Hayat Khan they found Maroof Khan accused, Riaz Khan, Faiz-ur-Rehman alias Arshad, Ashraaf alias Kala and Mahboob-ur-Rehman sitting armed in the way. Muhammad Maroof Khan fired with his klashnikov and injured Sohail Ahmad the brother of the complainant, on the left side of his shoulder. As a result of this injury Sohail Ahmad fell down. Faiz- ur-Rehman alias Arshad fired at Aftab Ahmad and injured his both arms. .Raees Khan, Pervaiz Khan and Waseem Sohail witnessed this occurrence. Later on they removed the injured persons from the place of incident and wanted to take them to the house of Shaukat Hayat Khan but in the way Sohail Ahmad succumbed to the injuries. These witnesses later on told the complainant that on account of their noise at the time of firing at this place of occurrence Navid and Shadab were coming to their rescue and when they reached near the old mosque they saw Razaq, Javid and Sohrab sitting armed in the way. Razaq fired with his .12 bore gun and injured Navid Khan. These accused continued firing for about half an hour. They were raising "Lalkara" that they will take revenge from the complainant. The motive of incident is stated to be a compensation amount of a common land received by accused Naqi Muhammad Khan by fraudulent means about which the case was pending between the parties in the Civil Court. On account of the previous enmity it is stated in the F.I.R. That the accused party has done away with the life of Sohail Ahmad and injured several persons.
3. On the basis of the report lodged by the first informant F.I.R. No,14, dated March 13, 1994, was registered against 14 accused persons for committing offences under section 5/15, Islamic Penal Laws Enforcement Act, 1974 read with sections 307, 147, 148, 149 and 341, Penal Code at Police Station Dhirkot, District Bagh. The police after necessary investigation placed Riaz Ahmad Khan accused in Column No, 2 giving him the benefit of section 169, Cr.P.C., while the rest of 13 accused were challaned before District Criminal Court, Bagh for their trial in the aforestated offences. The accused moved an application seeking their release on bail before the District Criminal Court Bagh, which was allowed to Faiz-ur-Rehman alias Arshad, Javid Iqbal, Irfan alias Shaveed and Zahoor Ahmad but was declined to the appellants 1 to 8, herein and one Abdul Razaq Khan vide its order dated July 17, 1994. On a revision petition filed by the complainant and a separate appeal filed by the accused the concession of bail allowed to Faiz-ur-Rehman accused was withdrawn and instead one Abdul Razaq Khan accused was extended the concession of bail vide the impugned order of Shariat Court, dated May 30, 1995. Hence this appeal on behalf of appellants Nos.1 to 9, herein, for their release on bail.
4. At the present moment we are dealing with the case of appellants Nos.1 to 9 who have filed the appeal against ,the order of Azad Jammu and Kashmir Shariat Court, dated May 30, 1995, as the rest of the accused are not before us.
5. Arguing the case, on behalf of accused-appellants, Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants vehemently contended that a false case has been registered against the appellants on account of previous enmity existing between the parties. The learned counsel maintained that all those accused who have been attributed no role for causing any injury to the deceased cannot be deprived of the concession of bail. The only allegation against most of the appellants is that they resorted to firing and caused simple injuries to the prosecution witnesses.
The learned counsel submitted with vehemence that almost every member of the accused party has been enroped in the case so that none should be left out to look after the interest of the accused persons or to protect them from the agony of the fabricated case. The learned counsel maintained that the concession of bail allowed to Faiz-ur-Rehman accused-appellant has been withdrawn by the Shariat Court without any just and concrete reason the basis of unfounded allegations attributed to him, despite the fact that no recovery was effected by the investigating agency at the instance of this accused. Similarly the part played by the rest of the appellants is also distinguishable from the principal accused who caused fatal injuries to the deceased. The learned counsel submitted that application of section 149, Cr.P.C. At the present moment cannot be attracted for the simple reason that it requires a deep scrutiny. The allegation of a pre-concert between the accused persons in presence of Wasim Sohail, Aftab, Pervaiz and Riaz P.Ws. Before the actual occurrence is falsified by their statements recorded under section 161, Cr.P.C. The contention of the learned counsel precisely is that the statements of these above-stated witnesses recorded under section 161, Cr.P.C. Are not above doubt so no reliance can be placed on the statements of these witnesses for determining the question of vicarious liability.
6. On the other hand Raja Sher Muhammad Khan, the learned counsel for the complainant strenuously contended that the appellants did not deserve the concession of bail as they formed an unlawful assembly and being armed with deadly weapons, they preplanned and in prosecution of the common object of taking the lives of complainant party resorted to indiscriminate and reckless firing, as a consequence of which Sohail Ahmad after having received fire-arm injuries breathed his last and 7 other persons were injured. It was submitted and emphasised that prior to the actual occurrence the accused party assembled in the house of one Muhammad Riaz and executed a plan to take away the lives of the complainant party and in execution of that plan all of them resorted to active firing and resultantly killed Sohail Ahmad and injured 7 other persons. The learned counsel maintained that once it is established from the record that the accused party had a common object and in prosecution of that object they did some overt act, it becomes absolutely immaterial as to the firing of which accused caused the death of deceased. According to the estimation of the learned counsel for the complainant all the accused who joined unlawful assembly and played some role in the execution of a common object would be held vicariously responsible for committing murder of Sohail Ahmad and murderous assault on the person of prosecution witnesses. The learned counsel candidly submitted that the concession of bail allowed to Abdul Razaq accused is also violative of law as he also armed with a deadly weapon opened fire and injured Shadab P.W. The mere fact that no recovery has been made from this accused does not detract him from the other incriminating circumstances, connecting him with the commission of offence. The learned . Counsel maintained that the accused party committed the gruesome murder and launched unprovoked murderous assault on the prosecution witnesses, deserving for no leniency in the matter of grant of bail.
7. Ch. Muhammad Yousaf, the learned Advocate-General, supported the contentions raised by the learned counsel for the complainant and submitted that the trial Court as well as the Shariat Court did not properly appreciate the question of vicarious liability which was attracted with full force in the instant case. The learned Advocate-General pointed out that the question of vicarious liability can be ascertained from the role played by the accused party in the commission of offence even at the stage of bail. All the accused were armed with deadly weapons and to execute their common plan they indulged in reckless firing and caused the death of Sohail Ahmad and injured various prosecution witnesses. The common object of the unlawful assembly can easily be inferred from the weapons carried by the accused party, their conduct in participation of the offence and their behaviour at the relevant time.
8. We have heard the respective contentions of the learned counsel for the parties, perused the record including the police diaries and the file of trial Court. It may be pointed out that it cannot be laid down as an inflexible rule of law that question of vicarious liability cannot be determined at the stage of bail. If from the circumstances of the case it can be gathered that the accused-appellants preplanned a scheme, hatched a conspiracy and in prosecution of that plan or conspiracy they participated in the commission of the offence, the question of vicarious liability applies with full force; however, this has to be ascertained cautiously without entering into detailed scrutiny and appreciation of the merits of the case of prosecution. Section 149, P.P.C. Itself does not create a new offence. It is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. It is however, to be noted that in order to bring a case within the section, the act must be done with a view to accomplish the common object of the unlawful assembly or it must be shown that the offence, committed in prosecution of the common object of the unlawful assembly, is the one which the accused knew would be likely to be committed in prosecution of the common object.
Such knowledge may be reasonably inferred on the nature of the assembly, their arms or their behaviour at or before scene of action. In other words for application of section 149 it is necessary:- -
(i) That one should be a member of an unlawful assembly,
(ii) That in prosecution of common object of that assembly an offence should be committed by a member of an unlawful assembly, and
(iii) That the offence should be of such a nature that the members of that assembly knew the offence to be likely to be committed in prosecution of their common object.
9. Keeping in view the above criteria we have examined the statements of Wasim Sohail, Aftab, Pervaiz and Riaz P.Ws. Recorded under section 161, Cr.P.C. Whose evidence pertains to participation of the accused persons for making a preplanning for the commission of offence in the house of Muhammad Riaz P.W. The statements of these witnesses prima facie differ in material particulars regarding hatching up of the conspiracy and entering into a preplanning. It is the case of the prosecution itself that at the time of actual occurrence accused party assembled at three different pickets. The group or set of those accused who resorted to firing at picket No,1 did not indulge in firing or causing injuries at pickets Nos.2 and 3. Similarly the group of accused who assembled at pickets Nos.2 and 3 did not participate in the firing attributed from picket No,1. It is also apparent from the case of the prosecution that during the course of firing most of the by passers were injured, which were never in the knowledge of the accused to have been injured. It also transpires from the record that it was reasonably not possible in the mind of the accused that some of the members of the complainant party would go at the relevant time for offering Fatia Khani at the house of Sardar Muhammad Akbar Khan son of Sher Afzal Khan. It is also thought provoking that according to the case of prosecution all the accused assembled in the house of accused Muhammad Riaz where they conspired and prepared a scheme taking the lives of the complainant party but on the basis of insufficient material collected by the Investigating Agency accused Muhammad Riaz has been placed in Column No,2 and was given the benefit of section 169, Cr.P.C.
According to the prosecution story the accused persons were assembled at three different places.
At this stage it cannot be said with certainty that all the accused persons did assemble at the house of Muhammad Riaz to enter into a common object.
10. In light of the observations made above we have to examine the circumstances and allegations in light of the evidence of the eye-witnesses. Naqi Muhammad Khan was declined concession of bail by the learned Judge in the Shariat Court on the ground that he was armed with .12 bore gun with which he injured chest and neck of Ijaz Khan. According to the prosecution story he was one of those accused persons who were present at picket No,1 where first incident took place. According to the allegation Naqi Muhammad Khan, armed with .12 bore gun, Muhammad Ashraf Khan armed with a klashnikov, Tariq carrying a .12 bore gun, Shaveed and Zahoor with hatchet and stick respectively in their hands were waiting for the complainant party. The statements of eye- witnesses in respect of Naqi Muhammad Khan find support from the medical reports which show that there are gunshot wounds on the face, thyroid and shoulder of Ejaz. Therefore, discretion exercised by the Shariat Court deos not warrant interference.
11. So far as appellants Mehboob-ur-Rehman and Ashraaf Khan are concerned the allegation against them is that both of them were armed with .12 bore guns with which they resorted to reckless and indiscriminate firing in order to create panic and harassment. As a result of their firing P.W. Pervaiz was injured. In this regard the statements of Pervaiz and Aftab Ahmad P.Ws. Were recorded. In his statement under section 161, Cr.P.C. It is stated by P.W. Pervaiz the injured witness, that both Mehboob-ur-Rehamn and Ashraaf Khan being armed with .12 bore gun have been firing recklessly and indiscriminately to create harassment, and as a result of their firing the witness was injured. To the similar effect is the statement of Aftab Ahmad P.W. Becomes clear that the firing is alleged to both the accused; however, it is not clear as to whose fire out of the two accused actually hit P.W. Pervaiz. The medico-legal report of Pervaiz Ahmad shows that only one pellet injury was caused to this witness. The medico-legal report stated "a pellet hole on sacral region just in mid line, pellet is palpable under skin". As stated earlier that the injury caused to this witness is attributed to two accused persons so it cannot be said with any degree of certitude at this stage that out of the two accused whose fire in fact caused the injury on the person of this witness. This being the position it becomes prima facie doubtful as to whose fire out of the abovementioned two accused caused injury on person of P.W. Pervaiz so the benefit of doubt arising even at the stage of bail must go to both the accused. Even the recovery effected from Mehboob-ur-Rehman and Muhammad Ashraaf accused-appellants is that of revolver .32 bore and a pistol .30 bore respectively by the Investigating Agency. No .12 bore gun was recovered from either of the accused.
This recovery on the face of it does not coincide with the version of the prosecution. We also cannot ignore the fact that as a result of reckless firing on the part of various members of the accused party by their .12 bore guns the pellet from the gun of any accused could have hit Pervaiz Ahmad.
After taking into consideration the statements of prosecution witness recorded under section 161, Cr.P.C., medico-legal reports, attending facts and circumstances of the case and various other salient features of the prosecution case we have come to the conclusion that the case of Muhammad Ashraaf Khan and Mehboob-ur-Rehman accused-appellants was distinguishable than those of the rest of the accused-appellants and the Shariat Court in exercise of its discretion committed illegality by declining the concession of bail to these two accused. The judgment of Shariat Court to the extent of these accused is not sustainable under settled principles of law regarding the grant or refusal of bail. We, therefore, admit Muhammad Ashraaf Khan and Mehboob-urRehman accused-appellants Nos.4 and 5 to bail in the sum of Rs,2 lac each with two sureties furnished by each accused alongwith their personal bonds of the same amount to the satisfaction of any Magistrate First Class Bagh. If the, needful is done the accused-appellants shall be released forthwith provided they are not wanted in any other case or offence. As regards the other appellants they are stated to have used fire-arm weapons and caused injuries to different persons. Muhammad Maroof Khan appellant is stated to have caused injuries on the person of Sohail Ahmad deceased with his klashnikov who as a result of the injuries caused by this accused lost his life. Muhammad Ashraaf Khan accused-appellant is attributed to have caused injury on the mouth of Zubaid P.W. Medical report of Zubaid shows that he sustained grievous injury on his mouth. The statement of injured person to this extent is fully supported by other witnesses. Wagar Khan, the accused-appellant is stated to be armed with .12 bore gun. He is alleged to have fired at Mst. Zeenat Begum causing her multiple injuries on chest, abdomen, neck and head. Tariq Khan accused-appellant according to the prosecution case was armed with .12 bore gun with which he caused injury on the person of Safoor Khan. Sohrab Khan accused has been shown armed with .12 bore gun with which he caused injuries on the hands and legs and Moheed, a prosecution witness.
The parts which have been ascribed to these accused-appellants are fully supported by the prosecution witnesses in their statements recorded under section 161, Cr.P.C. The prosecution version is also supported by medico-legal reports and recovery of different kinds of fire-arms from these accused-appellants. Deceased Sohail Ahmad is reported to have died due to the firing by Muhammad Maroof Khan accused-appellant No,1, herein. The post-mortem report shows that the deceased Sohail Ahmad died due to the injuries which allegedly he received on account of firing by appellant Muhammad Maroof Khan. The trial Court as well as the Shariat Court committed no illegality or error in law while refusing the concession of bail to these appellants. We have also looked into the case of Faiz-ur-Rehman appellant No,9 whose bail was cancelled by the Shariat Court. The allegation against Faiz-ur-Rehman is that he was accompanied by Muhammad Maroof Khan who with fire-arm weapon caused fatal injuries to Sohail Ahmad deceased. According to the prosecution version this accused also indulged in firing and has caused fire-arm injuries to Aftab Ahmad Khan on his right and left arms. Aftab Ahmad Khan has stated in his statement recorded under section 161, Cr.P.C. That Faizur Rehman accused-appellant was responsible for causing him the injuries. Raees and Wasim Sohail have also supported his version before the police in their statements. Therefore, prima facie, there is a sufficient evidence against him that he caused injuries with fire-arm weapon to Aftab Ahmad Khan. The mere fact that no recovery has been made from this witness does not detract him from other incriminating material in the shape of ocular version of the eye-witnesses, connecting him with the commission of offence. In view of the above analysis of the facts and circumstances of the case the appeal filed by appellants Nos.1, 2, 3, 6, 7, 8 and 9 stands rejected.
12. The bail of Muhammad Maroof Khan, Muhammad Ashraf Khan and Naqi Muhammad Khan appellants Nos.1, 2 and 3 herein, has been sought even on medical grounds as they have been shown heart patients. It was contended by Mr. Ghulam Mustafa Mughal the learned counsel for the appellants that these appellants in view of their serious ailment are entitled to the concession of bail irrespective of their role in the commission of the crime. The learned counsel maintained that the fact of their being heart patients was not either denied by the trial Court or by the Shariat Court, but nevertheless, they directed that these accused-appellants may renew their prayer for bail in case they are not provided with proper medical treatment in the jail. On the other hand Raja Sher Muhammad Khan, the learned counsel for the complainant vehemently opposed the bail plea of the above appellants on the ground that these appellants are clearly connected with the commission of offence the punishment for which is provided either the death penalty or the life imprisonment. So it was argued that these appellants were not entitled to be released on bail. Raja Sher Muhammad Khan also contended that relevant material produced by these appellants in the trial Court and the Shariat Court pertains to their heart ailment during the year 1991 much prior to the unfortunate incident of murder and murderous assault. It was strenuously argued by the learned counsel for the complainant that no medical certificate was produced by these appellants of the year 1994 when the occurrence took place. The bulk of the material showing the heart ailment of these accused was produced in this Court which under law cannot be considered.
13. In our view the contention raised by Raja Sher Muhammad is not without any force. The bulk of material showing that accused-appellants Nos.1, 2 and 3 are suffering from heart disease was produced for the first time in this Court which cannot be considered under law. This Court being the appellate Court can only look into that material which was produced in the trial Court. The trial Court as well as the Shariat Court in their judgments, disposing the bail application of the appellants, simply observed that in case the appellants are not provided proper medical treatment in the jail the appellants may renew _their bail prayer. In our view the findings recorded by the trial Court and Shariat Court are not without any foundation. The accused appellants even under jail Rules are entitled to be treated by the jail doctor and in case the medical facility is not provided to them or their condition requires the need of their hospitalization or proper treatment outside the jail, they will be at liberty to renew their bail prayer on the basis of fresh grounds. The trial Court and Shariat Court have committed no illegality in dismissing their bail petitions at this stage.
' The upshot of the aforesaid discussion is that the appeal stands disposed of in the manner indicated above.