1. MUHAMMAD YUNUS SURAKHVI, J.---This appeal has been directed against an order passed by the Shariat Court of Azad Jammu and Kashmir on December 16, 1996, whereby the revision petition filed by the appellants for the cancellation of bail of respondents was dismissed.
2. The necessary facts, forming the background of the present appeal, briefly stated, are that a case under section 5 of Islamic Penal Laws Enforcement Act, 1974, read with sections 307, 147, 148, and 149, A.P.C. was registered against accused Zahid Mahmood, Muhammad Aslam, Muhammad Ali, Mahmood, Maroof, Muhammad Shafique, Amjad, Muhammad Yousuf, Jalal Din and Muhammad Khaurshid at Police Station Sehnsa, District Kotli. The prosecution story, as disclosed in the F.I.R. is briefly to the effect that on March 3, 1995, at about 1.45 p.m. the accused were allegedly beating Muhammad Ilyas and Muhammad Haroon, sons of Farid, the nephews of Muhammad Shabir, near his house on the road side on whose noise Muhammad Shabir was attracted at the place of occurrence and tried to rescue them. The accused persons armed with sticks were already present on the scene of occurrence who with an intention to kill Muhammad Shabir initiated the attack. The accused Arshad Mahmood inflicted injuries with his stick on the head of Muhammad Shabir who fell down. Muhammad Maroof also caused injuries to Muhammad Shabir with the stick. A tractor, standing nearby, belonging to Muhammad Rauf was started by Muhammad Shafique accused and he allegedly crushed Muhammad Shabir with the said tractor.
2. On the hue and cry of the injured persons, Muhammad Irshad, Gul Nawaz, Khalid and Mst. Walayat Begum were attracted at the place of occurrence. Accused Muhammad Aslam, Amjad, Shahid, Muhammad Ali, Jalal Din, Muhammad Yousuf and Khurshid were stated to have inflicted injuries to Muhammad Irshad, Gul Nawaz and Mst. Walayat Begum with their sticks. The motive of occurrence is stated to be a dispute regarding the pipe-line of water supply. On a report lodged by Muhammad Kabir, the brother of Muhammad Shabir, injured person, at police station Sehnsa, Tehsil Kotli, a case was registered against the accused persons under the above stated offences and the investigation was started. On 8-3-1995 Muhammad Shabir, the injured person, succumbed to the injuries at Complex Hospital, Rawalpindi whereupon the offence under section 5 of Islamic Penal Laws Enforcement Act was added. During the course of investigation Muhammad Yousuf, Jalal Din, accused, were extended the benefit of section 169 Cr.P.C., while Muhammad Khurshid and Amjad, accused, absconded. After the conclusion of investigation, the accused were challaned before the District Criminal Court Kotli on 14-5-1995 for facing their trial. Out of the ten accused stated above Arshad Mahmood, Maroof, Shafique, Zahid Mehmood, Muhammad Aslam and muhammad Ali are facing their trial before the trial Court Kotli who applied for their bail in the said Court which vide its order, dated February 25, 1996, declined the concession of bail to Arshad Mahmood, Muhammad Maroof and Muhammad Shafique accused however the same was allowed to Zahid Mahmood, Muhammad Aslam and Muhammad Ali, accused-respondents. During the pendency of appeal Zahid Mahmood, one of the respondents, is stated to have died.
3. 3.The appellants herein feeling aggrieved with the order of the trial Court allowing the concession of bail to respondents filed a revision petition, as said earlier, which was dismissed vide the order impugned in the present appeal. Hence this appeal for cancellation of bail of respondents by the appellants.
4. 4.Mir Khalid Mahmood, the learned counsel appearing on behalf of appellants, submitted that the respondents were vicariously liable for the murder of Muhammad Shabir and causing injuries to the prosecution witnesses as all the accused actively participated in the commission of offence of murder and murderous assault. According to the learned counsel all the accused way-laid Muhammad Shabir, deceased, and the P.Ws. and with an intention to kill Muhammad Shabir and an attempt to cause the death of P.Ws. initiating the attack; thus they were equally liable for the commission of offences along with other accused to whom the concession of bail was declined by the trial Court. According to the learned counsel the trial Court as well as the Shariat Court committed an illegality in extending the concession of bail to the respondents. It was further emphasised by the learned counsel that Muhammad Aslam, accused, caused injury on the head of Gul Nawaz P.W.. similarly Muhammad Ali, accused, inflicted injuries with his stick on the head and right arm of Mst. Walayat Begum. Zahid Mehmood, accused, is stated to have caused injuries to Muhammad Irshad and one of them is declared by the doctor as a grievous injury. Thus, the active participation of the aforesaid accused in the commission of offence shows that they were vicariously liable along with the other accused and as such were not entitled to the concession of bail. The learned counsel for the appellants in support of his contentions relied on Karamat Ali v.
5. Haji Muhammad Hussain and 4 others (1993 PCr.LJ. 2112), Muhammad Rashid v. The State (1979 SCM R 92) and Nazar Muhammad v. The State (PLD 1978 SC 236).
6. 5.Ch. Muhammad Mushtaq, the learned Additional Advocate-General, fully supported the submissions made by Mir Khalid Mahmood, the learned counsel for the appellants, and pressed for the cancellation of bail of respondents.
7. 6.On the other hand, Mr. Liaqat Ali Khan, the learned counsel for respondents, vehemently opposed the contentions raised by the learned counsel for the appellants and the learned Additional Advocate-General. The learned counsel argued that keeping in view the facts and circumstances of the case the accused-respondents could not be saddled with the principle of vicarious liability as the accused-respondents neither caused any injury to the deceased nor made any overt-act qua the deceased. According to the learned counsel P.Ws. Gul Nawaz, Irshad and Mst. Walayat Begum were attracted at the place of occurrence when the deceased Muhammad Shabir had already sustained injuries. The learned counsel pressed into service the submission that the injuries caused to Gul Nawaz and Mst. Walayat Begum P.Ws. were simple in nature, and thus, the concession of bail was rightly extended to the said accused by the trial Court and the same view was upheld by the Shariat Court.
8. 7.We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record with utmost care. At the very outset it may be stated that during the pendency of appeal in this Court Zahid accused-respondent is stated to have died and this fact is not denied from the side of appellants. The appeal against Zahid accused, thus, has become infructuous and the same stands dismissed.
9. However, according to statement of Muhamamd Irshad, injured P.W., recorded under section 161, Cr.P.C. whose one of the injuries is stated as grievous by the Medical Officer, has attributed both the injuries on his person to have been caused by Amjad and Zahid accused. Since Amjad accused is one of the absconders and Zahid accused has died so we need not dilate upon the merits of the case of these accused, one of whome is absconder and the other has died.
10. 8.As regards the injuries attributed to Muhammad Aslam and Muhammad Ali, respondents, they are declared as simple by the Medical. Officer. The perusal of the F.I.R. and the statement of Muhammad Kabir complainant shows that injuries inflicted on the person of Gul Nawaz and Mst.
11. Walayat Begum were attributed to all the accused, thus, the allegation in the F.I.R. and the statement of Muhammad Kabir, the first informant, is vague and general in nature. The statement of Khalid Hussain P.W. recorded under section 161, Cr.P.C. shows that Muhammad Shafique accused crushed Shabir, deceased, and Mst. Walayat Begum, P.W. by driving a tractor upon them. It also reveals that accused Muhammad Ali and Khurshid caused injuries on the head and right arm of Mst. Walayat Begum and Muhammad Aslam accused inflicted injury with his stick on the head of Gul Nawaz. To the similar effect is the statement of Muhammad Irshad, injured P.W., whereas it was stated by Gul Nawaz P.W. that mst. Walayat Begum was inflicted injuries by Muhammad Ali, Khurshid and Shafique, accused, with their sticks and Muhammad Aslam, accused, caused an injury to him. Mst. Walayat Begum herself in her statement attributed the injuries on her person to have been caused by Muhammad Ali and Khurshid, accused Muhammad Ilyas, another P.W., in his statement under section 161, Cr.P.C. attributes injuries to all the accused persons. The brief portions of the statements of prosecution witnesses under section 161, Cr.P.C. have been narrated just to show that prima facie it is yet to be seen after recording the evidence of the eye-witnesses during the trial as to whether the present respondents shared the intention of those accused who inflicted injuries on the person of deceased which resulted into his death. Another significant aspect to note is that only one injury each has been caused to Mst. Walayat Begum and Gul Nawaz, P.Ws. whereas the attribution in case of Mst. Walayat Begum is to three accused persons in statements of most of the prosecution witnesses under section 161, Cr.P.C. and to all the accused persons in the F.I.R. and the statement of Muhammad Kabir, the first informant who caused the injuries on her person.
12. 9.About the question of vicarious liability it may be pointed out that the cases are not lacking wherein even at the stage of bail the accused were held responsible vicariously for the acts of the principal accused or those accused who in fact inflicted injuries on the person of deceased but each case has to be seen in the light of its own peculiar facts and circumstances. The mere fact that the accused persons have been challaned by the police holding them vicariously liable for the murder or the murderous assault does not mean that the Court is precluded from looking into the relevant material available at the stage of bail i,e, the F.I.R., the statements of prosecution witnesses recorded under section 161, Cr.P.C., the medico-legal report, the recoveries, the plea of defence, if any, raised by the accused and the other relevant considerations. In Khurshid Ahmed v.
13. Muhammad Ilyas and others (1994 SCR 136) it was observed by this Court at page 140 of the report as under:-- "It is true that all the nine accused respondents have been found to be members of an unlawful assembly by the police and are thus, according to the prosecution case, vicariously liable for the offence of murder but it has also to be kept in mind that none of them is charged with any overt act qua the deceased. Although we cannot rule out the possibility that the prosecution may at the trial be able to prove the vicarious liability of the nine respondents but it can be proved on the basis of evidence which has yet to be recorded. In the peculiar circumstances of the case it is also possible that ultimately the accused persons may not be found guilty. Therefore, we are of the view that discretion exercised by the Shariat Court in respect of the nine respondents cannot be said to be arbitrary."
10. The accused-respondents were released on bail by the Trial Court. The discretion, thus, exercised by the Trial Court was upheld by the Shairiat Court. It is an established principle of criminal law that a valid discretion exercised by the Trial Court cannot be interfered with unless the same is either arbitrary, perverse or capricious. It is always the arbitrariness or perversity of the discretion which calls for indulgence by this Court. In our view, the Trial Court as well as the Shariat Court committed no illegality in allowing the concession of bail to accused-respondents.
14. For the aforestated reasons, finding no force in this appeal, it is hereby dismissed.