1. The facts leading to the present-petitions briefly stated are that on the complaint lodged by Abdur Rehman complainant with Police Station Bhimber, a case under sections 302, 147, 148 and 149, A.P.C., was registered against petitioner Aurang Zeb and other respondents of Revision Petition No,18 of 1997, namely Abdul Karim, Muhammad Zaman, Shahbaz Qumer, Muhammad Ali, Muhammad Yasin, and Muhammad Amin. After the completion of the investigation, all the accused-persons have been sent to face trial before the principal Court of Criminal Jurisdiction Bhimber.
2. In this case, the incident allegedly took place on 1-5-1996, at 6.00 a.m. the report was lodged with Police Station Bhimber at 7.00 a.m. by complainant Abdur Rehman on the same day. A cross-report was lodged by one Muhammad Ali son of Sher Muhammad, who was also injured in the incident. It is alleged that Aurang Zeb and Shahbaz Qumer used fire-arms, which resulted into the death of two persons. So far as, other accused-persons are concerned, the case of the prosecution is that they were carrying Dundas in their hands. They remained present during the incident and later on fled away from the scene of occurrence. Previously, on bail application moved by the accused- persons, it was opined by the Sessions Judge Bhimber that the presence of the remaining accused-persons at the scene of occurrence in the circumstances of the case needed further inquiry, therefore, they were allowed bail vide order dated 8-9-1996. However, the concession of bail was refused to Aurang-Zeb and Shahbaz Qumer by the Sessions Judge on the ground that they were attributed to have used fire-arms in the incident which caused the death of two human beings. The order was challenged by the parties before the Shariat Court. The decision was set aside and the case was remanded for fresh decision on the ground that the Court was not complete in the absence of District Qazi, who was not appointed in those days. After the remand order, the fresh order was passed by the trial Court. The trial Court rejected the bail application of accused Aurang Zeb, however, a difference of opinion arose in respect of bail of Shahbaz Qumer who in the wisdom of District Qazi Bhimber was entitled to the concession of bail, whereas, the learned Sessions Judge rejected his bail application. Due to the difference of opinion about the bail matter of accused Shahbaz Qumer, the matter was referred for adjudication to this Court for its opinion through a Reference No,37 of 1997. The complainant Abdur Rehman has challenged the correctness of this order vide his Revision Petition No,18 of 1997, to the extent of remaining accused- persons who were released on bail and accused Aurang-Zeb has challenged the legality of this order through a Revision Petition No,68 of 1997. As reference and petitions have arisen out of same order of the trial Court, as such, shall be disposed of through the single order.
3. I have heard the learned Counsel for the parties and gone through the entire record.
4. It was argued by the learned Counsel for Aurang Zeb and other accused-respondents who stood released on bail that incident took place in the house of Subedar Faazel. His two sons namely Muhammad Ishfaque and Muhammad Riaz have deposed that due to the chase of complainant party, Aurang Zeb entered into the house of Subedar Faazel and closed the door from inside.
5. Complainant Abdur Rehman alongwith his associates was chasing Aurang-Zeb. Complainant Abdur Rehman started firing inside the room by 222 bor rifle, whereas, his associates broke open the door Muhammad Bashir, due to sudden opening of the door could not maintain his balance and fell on the wall of the room. In the meantime, he received the fire arm injuries and ultimately died. According to Medico Legal Report, Muhammad Bashir died due to fire-arm injuries which were fired by two different weapons. According to Muhammad Riaz and Muhammad Ishfaque, incident. It is alleged that Aurang Zeb and Shahbaz Qumer used fire-arms, which resulted into the death of two persons. So far as, other accused-persons are concerned, the case of the prosecution is that they were carrying Dundas in their hands. They remained present during the incident and later on fled away from the scene of occurrence. Previously, on bail application moved by the accused-persons, it was opined by the Sessions Judge Bhimber that the presence of the remaining accused-persons at the scene of occurrence in the circumstances of the case needed further inquiry, therefore, they were allowed bail vide order dated 8-9-1996. However, the concession of bail was refused to Aurang-Zeb and Shahbaz Qumer by the Sessions Judge on the ground that they were attributed to have used fire-arms in the incident which caused the death of two human beings. The order was challenged by the parties before the Shariat Court. The decision was set aside and the case was remanded for fresh decision on the ground that the Court was not complete in the absence of District Qazi, who was not appointed in those days. After the remand order, the fresh order was passed by the trial Court. The trial Court rejected the bail application of accused Aurang Zeb, however, a difference of opinion arose in respect of bail of Shahbaz Qumer who in the wisdom of District Qazi Bhimber was entitled to the concession of bail, whereas, the learned Sessions Judge rejected his bail application. Due to the difference of opinion about the bail matter of accused Shahbaz Qumer, the matter was referred for adjudication to this Court for its opinion through a Reference No,37 of 1997. The complainant Abdur Rehman has challenged the correctness of this order vide his Revision Petition No,18 of 1997, to the extent of remaining accused- persons who were released on bail and accused Aurang-Zeb has challenged the legality of this order through a Revision Petition No,68 of 1997. As reference and petitions have arisen out of same order of the trial Court, as such, shall be disposed of through the single order.
6. I have heard the learned Counsel for the parties and gone through the entire record.
7. It was argued by the learned Counsel for Aurang Zeb and other accused-respondents who stood released on bail that incident took place in the house of Subedar Faazel. His two sons namely Muhammad Ishfaque and Muhammad Riaz have deposed that due to the chase of complainant party, Aurang Zeb entered into the house of Subedar Faazel and closed the door from inside.
8. Complainant Abdur Rehman alongwith his associates was chasing Aurang-Zeb. Complainant Abdur Rehman started firing inside the room by 222 bor rifle, whereas, his associates broke open the door Muhammad Bashir, due to sudden opening of the door could not maintain his balance and fell on the wall of the room. In the meantime, he received the fire arm injuries and ultimately died. According to Medico Legal Report, Muhammad Bashir died due to fire-arm injuries which were fired by two different weapons. According to Muhammad Riaz and Muhammad Ishfaque, complainant Abdur Rehman was also firing inside from the window of the room. The Court in these circumstances, was justified in extending benefit to the extent of bail to accused Shahbaz Qumer from whom police has recovered Dunda in the presence of Sajad Hussain and Muhammad Hanif.
9. This benefit, according to the learned Counsel, should have been given even to Aurang Zeb as in the light of the circumstances. of the case, even if it is assumed that he fired at Muhammad Bashir, this was done by him in his self-defence. The trial Court, by declining bail to Aurang Zeb has committed error in law. He, therefore, requested that Aurang Zeb be also released on bail.
10. While opposing bail of Aurang Zeb and seeking the cancellation of bail of remaining accused- respondents, it was argued by Ch. Muhammad Sharif Tariq, Advocate that Aurang Zeb and Shahbaz Qumer, according to the eye-witnesses, were armed with fire-arms which they used in the occurrence and caused the death of Muhammad Bashir and Shabir Hussain. It was further argued that even though the police has recovered a Dunda from accused-respondent Shahbaz Qumer, but this concession given by the police should not be given weight. Because, eye-witnesses have deposed that he used fire-arms in the occurrence. He further argued that the presence of other accused-persons at the scene of occurrence was the source of encouragement for accused Aurang Zeb and Shahbaz Qumer, therefore, these accused-persons too were not entitled to claim the concession of bail. The trial Court while allowing them bail has committed error in law. He requested that bail order recorded in favour of accused-persons be recalled.
11. The arguments were considered in, the light of the material collected by the Police during the course of investigation. In this case, admittedly the occurrence took place in the house of Subedar Faazel. His two sons namely Muhammad Riasat and Muhammad Ishaq are natural witnesses, who have deposed that complainant Abdur Rehman was also armed with rifle .222 bore Police has drawn this conclusion that Abdur Rehman used this rifle by firing inside the room through window in which accused Aurang Zeb had taken shelter. This possibility, therefore, cannot be ruled out that deceased Bashir might had received fire arms injuries as a result of firing of complainant Abdur Rehman. From Shahbaz Qumer, the police has recovered Dunda. The prosecution case is that he was armed with the Dunda and not with any fire arm. Up to this time, the Police investigation has not been challenged by the complainant party by filing a private complaint. Death of both the deceased, according to Medical Legal Report, was caused due to fire-arm injuries.
12. In view of these facts, the involvement of other respondents and Shahbaz Qumer from whom Dunda has been recovered in this case by the police needed further inquiry. The trial Court, therefore, was justified in allowing them bail at this stage, as this concession cannot be withheld as a matter of punishment. As far the case of Aurang-Zeb is concerned, the case of the prosecution is that he was armed with Klashnikov which was used by him during the occurrence. In F.I.R., Shabir Hussain is attributed to have received fire-arm injuries from Shahbaz Qumer, whereas, as stated in this order, from Shahbaz Qumer police has recovered only Dunda. prima fecia, it appears that Shabir Hussain was also injured by the firing of Aurang Zeb. Whether Aurang Zeb had the right of private defence is a question which cannot be resolved at this stage. He may renew his prayer for his bail after the evidence of eye-witnesses is recorded in the case.
13. In these circumstances, the order recorded against him by the trial Court need no interfernece by this Court. The revision petitions are without merits which stands dismissed. The reference also