' MUHAMMAD YUNUS SURAKHVI, J.--- The above-captioned two appeals arise out of the judgments passed by Shariat Court of Azad Jammu and Kashmir on 3-7-1996 and 22-10-1996 respectively, whereby the respondents in both the appeals were released on bail. As both the appeals raise common question of facts and law, so the same are disposed of through this single judgment.
2. The respondents in both the appeals alongwith others are facing their trial before the District Criminal-Court, Mirpur for the murder of Irfan Ahmed, the student of Engineering University College, Mirpur. The principal accused, Shakil Gujar, has not so far been apprehended by the police due to his abscondence. The plea for bail on behalf of Nafees Jillani has been rejected by the trial Court as well as the Shariat Court and this Court. The alleged occurrence of murder and murderous assault took place on 9-1-1996, at 4 p.m. Within the premises of the University College for Engineering. In the background there was a tussle between two groups of students known as the Muslim Students Federation and the Islami Jamiat Tulba. The deceased Irfan Ahmed and members of his group, which may be called the complainant group were claimed to have been allotted a bungalow in the college premises for the residence of students but they could not get the possession of the same.
Ultimately a bungalow was vacated by one Hafeez Khokhar, their teacher, wherein the students belonging to Islami Jamiat Tulba were claimed to be living already in one of the rooms and they also occupied the other room, upon which the accused belonging to M.S.F. Group threatened the complainant party to get the bungalow vacated. According to the First Information Report lodged by Ejaz Ahmed, complainant, at least six of the students belonging to accused group was armed with fire-arm weapons. When they were coming to the bungalow in dispute, the principal accused, Shakil Gujar, and Nafees Jillani resorted to firing pistol shots. Thereafter Shakil Gujar fired at Irfan who was said to have been unarmed causing injuries on his chest. After receiving the injury he fell down and later succumbed to the injuries in the local hospital. It is further stated in the first information report that Rashid Mehmood and Azim Ullah were injured by the firing of Nafees Jillani, Shakil Gujar and others. It is further stated that when Wan Ahmed was being taken to the hospital Shakil Gujar and Yasar Mehhoob Qureshi pursued them up to the roadside. It is also claimed in the F.I.R. That at the time of attack alongwith the aforesaid accused about twenty students joined them out of them Qazi Khalid, Mazhar Ghorsy, Asad Butt, Imran Qadeer and Imran Tipu were the prominent.
3. The respondents were refused their bail by the trial Court but in the Shariat Court respondents Imran Tipu, Mazhar Ghorsy and Khalil Gujar were released on bail by the Shariat Court vide its order, dated 3-7-1996 and Shahid Akhtar Abbasi and Yasar Mehboob Qureshi on 22-10-1996. Hence these two appeals on behalf of complainant Ejaz Ahmed.
4. Kh. Ali Muhammad, the learned counsel for the complainant-appellant, vehemently contended that the respondents in both the appeals were released on bail by the Shariat Court in violation of the settled principles governing the bail matters. The learned counsel urged that all the accused- respondents were armed with fire-arm weapons and they actively participated in the commission of offence as a result of which Irfan Ahmed was shot at the chest who later on succumbed to the injuries and Rashid Mehmood and Azim Ullah, the other two students, were injured making all the respondents vicariously liable for the murder of deceased and attempting murderous assault on the persons of Rashid Mehmood and Azeem Ullah. According to the learned counsel the Shariat Court fell in a grave error in not applying the principle of vicarious liability. The accused- respondents committed a heinous offence of murder and murderous assault as such were not entitled to the concession of bail extended to them, submitted the learned counsel. He contended that individual intention is immaterial in cases under section 149 of the Penal Code. He relied on Sohna and others v. Emperor AIR 1940 Lah. 53, Ilam Din and 3 others v. The State 1970 SCM R 576 and Muhammad Suleman and others v. The State and others 1997 PCr. LJ 229.
5. On the other hand Ch. Muhammad Akhtar, Ch. Lal Hussain and Ch. Masood Khalid, the learned counsel for the respondents, strenuously opposed the contentions raised by the learned counsel for the appellant. It was argued by Ch. Lal Hussain and Ch. Muhammad Akhtar that according to the prosecution itself the fatal shot, as a result of which Irfan Ahmed, deceased, succumbed to the injury, was attributed. o Shakil Gujar, whereas the other shots on the persons of Rashid Mehmood and Azeem Ullah were attributed to Nafees Jillani and Shakil Gujar. In so far Imran Tipu, Mazhar Ghorsy and Khalil Gujar were concerned they were alongwith those twenty students who later joined the accused Shakil Gujar and Nafees Jillani but no overt act is attributed to these accused towards the deceased or the eye-witnesses. It was further contended that Khalil Gujar accused was ultimately extended the benefit of section 169, Cr.P.C. And was placed at column No,2 of the challan by the police. The learned counsel maintained that the abovesaid accused were neither armed with any weapon nor any recovery was affected at their instance by the police.
6. Ch. Masood Khalid, the learned counsel representing Shahid Akhtar Abbasi and Yasar Mehboob Qureshi, strenuously urged that although it was claimed in the F.I.R. That both these accused were armed with pistols but they were not alleged to have fired upon anyone. The learned counsel maintained that similarly in the F.I.R. It is alleged that Yasar Mehboob Qureshi and Shakil Gujar followed the complainant party up to the roadside for the purpose of launching the attack but no such attack was alleged to have been made by Yasar Mehboob Qureshi. The learned counsel contended that the mere fact that both the accused were armed with pistols would not make them vicariously liable for the offence of murder and the murderous assault committed by Shakil Gujar, the principal accused and Nafeez Jillani. According to the learned counsel the story putforth in the first information report was subsequently improved at the time of recording of statements of prosecution witnesses under section 161, Cr.P.C. In the police statement some of the witnesses did state that these two accused resorted to firing but the same was ineffective and not aimed at anyone. The learned counsel submitted that two eye-witnesses namely Muhammad Nawaz and Rashad Mehmood, the injured witness, do not even allege the ineffective firing to Yasar Mehboob Qureshi. Thus, according to the learned counsel, the participation of these two accused in the commission of offence is questionable and falls within the purview of further inquiry. In support of his contentions the learned counsel relied on Mumtaz Hussain and 5 others v. The State 1996 SCM R 1125, Fazlur Rehman v. The State PLD 1981 SC (AJ&K) 11 and Muhammad Sadiq v. The State 1996 SCMR 1655.
7. Ch. Muhammad Musthaq, the learned Additional Advocate-General, fully supported the contentions raised by the learned counsel for the appellant and submitted that all the respondents stand vicariously liable for the commission of offence as alleged against them and as such the Shariat Court fell in an error to release the accused-respondents on bail.
8. We have given our anxious thought to the arguments advanced by the learned comsel for the parties and perused the relevant record with care. From the perusal of F.I.R. And the statements of prosecution witnesses recorded under section 161, Cr.P.C. It is evident that the origin of occurrence is stated to be on account of occupation of a bungalow for accommodation by the students belonging to Islami Jamiat Tulba. The accused party wanted to dislodge them from the said bungalow upon which a quarrel ensued and resulted into firing. It is also evident from the F.I.R. That the fatal shot was fired upon by Shakil Gujar and the other shots were made by Shakil Gujar and Nafees Jillani which caused injuries on the persons of Rashad Mehmood and Azim Ullah, the students belonging to the complainant party. The perusal of the F.I.R. Shows that it is a detailed document specifying the role of almost every accused. It is indeed correct that both Shahid Akhtar Abbasi and Yasar Mehboob Qureshi were stated to be armed with pistols but in the F.I.R. There seems to be no allegation of their resorting to any firing. It was alleged in the F.I.R. That Yasar Mehboob Qureshi and Shakil Gujar followed the complainant party up to the roadside for the purpose of launching attack even after the injuries had been caused to Irfan Mehmood, Rashad Mehmood and Azim Ullah.
9. The Shariat Court has examined all the aspects of the case and has exercised its discretion in favour of the respondents. It is well-settled that a bail order is not to be interfered with merely on the ground that this Court may take a different view from that which has been taken by the Shariat Court. We do not want to record any comments on the allegations against the respondents because it may prejudice the outcome of the case. However, keeping in view all the facts of the case including the fact that the respondents are students, we decline to interfere in the order of the Shariat Court.
10. For the foregoing reasons we find no merit in these appeals as such both the appeals stand dismissed.