1. ' The revision petition has been addressed against the order of District Criminal Court, Mirpur, dated 22-1-1999, whereby the petition for bail filed by the petitioners, herein, was dismissed.
2. ' The brief facts giving rise to the present revision petition are that Alam Zaib filed a written report with Station House Officer, Police Station Thothal, Mirpur alleging that on 31st of August, 1998 at 5-30 p.m. He with All Zaib, deceased, Ansar Mehmood and Hanif were sitting on the Video Shop of Ali Zaib, deceased. When he got up from the shop and walked about 15 to 20 yards away, a white Suzuki Car in a very high speed came from Thothal side. As soon as he heard the sound of the brakes of the car he turned behind and saw accused Zahid and Arshid Mehmood coming down from the car along with three unknown persons whom he can identify. Messrs Zahid and Arshid Mehmood were armed with deadly weapons like Kalashnikov. They fired shots on the glasses of shop. Meanwhile the complainant reached on the front of deceased shop when both accused entered into the shop. Zahid fired a shot upon the chest of the deceased, All Zaib with an intention to kill him. Zahid again made another fire which hit upon the left knee of Muhammad Hanif. As soon as the people gathered around the accused Zahid and Arshid with three unknown persons fled away from the place of occurrence. The occurrence was witnessed by complainant Muhammad Hanif, Ansar, Arshid, Shahzaib and Abid Baig. The injured were carried to the hospital but Ali Zaib, deceased succumbed to the injury in the hospital. The motive behind the occurrence is a quarrel between Zahid -and deceased, in which deceased was injured but police arranged a compromise between their but the accused did not forget the incident. It was also stated in the F.I.R. That on 30th of August. 1998 'at, 7-45 p.m, accused Zahid along with Haji Muhammad Ramzan came to his house and both of them made a threat in presence of the complainant and Shahzaib that they will kill All Zaib, deceased. When Ali Zaib came home at night he also told the story to the deceased.- He is with a firm view that accused Zahid has committed the crime on the provocation of Haji Muhammad Ramzan. On this report a case under sections 302/324. 147/148, 149/452, 337-F and 427/109, A.P.C. Was registered. After usual investigation all, the accused were put on trial and the trial Court has fixed the next date for recording the statements of the accused under section 242 of Cr.P.C. The -petitioners-accused applied for bail to the trial Court on 19-12-1998 but their prayer was disallowed by the trial Court on 22-1-1999. It is against the order of trial Court that the present revision petition has been preferred.
3. ' I have heard the arguments and perused the file with utmost care. It has been contended by Chaudhry Lal Hussain, the learned counsel, appearing on behalf of the petitioners that the trial Court did not appreciate the legal position of the case by disallowing the bail to the petitioners. He also argued that there is no case against the petitioners and it is a case of further inquiry, thus, the bail may be granted to the petitioners as a matter of right. He further argued that the petitioners have not been nominated in the F.I.R. But during the investigation an identification parade was not held. He also took us through the statements of Alam Zaib P.W.2, Shahzaib P.W.3 and Muhammad Hanif P.W.4 and submitted that in the light of the statements of the abovementioned prosecution witnesses recorded under section 161 of Cr.P.C., no overt act was attributed to the petitioners and only their presence at the time of the occurrence has been shown. The learned counsel for the petitioners also maintained that the statement of Abid Nawaz P.W.6 was recorded on 1-9-1998 after 24 hours of the occurrence which can't be relied upon. He further argued that neither the petitioners were armed with deadly weapons nor they fired any shot, therefore, their only presence at the scene of occurrence did not disentitle them from the concession of bail. Especially when the petitioners are under arrest for the last six months. He also submitted that in the light of the facts and circumstances of the case the question of determination of vicariously liability is a matter of further inquiry. Therefore, the petition may be accepted and the petitioners may be released on bail. In support of his contentions he referred the following case-law:--
(i) PLD 1985 Sh. C. (AJ&K) 18.
(ii) 1993 PCr. U 2242.
(iii) 1999 M LD 939.
4. ' While controverting the arguments of the learned counsel for the petitioners, Muhammad Azam Khan. The learned counsel for the complainant vigorously argued that the petitioners were present on the spot and in the light of the statements of Abid Nawaz (P.W.6) and Arshid Mehmood (P.W.7) the petitioners have been clearly nominated. He further argued that both the accused Arshid Mehmood and Zahid were armed with rifles. And the petitioners-accused also accompanied them.
5. Thus. They had full knowledge of the pre-planned occurrence. According to him, in the light of the statements of the prosecution witnesses the petitioners are vicariously liable for the commission of offence. Therefore, the trial Court has rightly exercised its discretion and the impugned order may be maintained. In support of his arguments the learned counsel for the complainant cited 1994 SCR 11.
6. ' Mr. Muhammad Mushtaq Ch. The learned Additional Advocate-General owned and supported the arguments of the learned counsel for the complainant and submitted that in view of the circumstances of the case, bail was rightly refused to the petitioners by the trial Court and the impugned order may be upheld.
7. ' In the light of the arguments advanced at the Bar I have carefully examined the record as well as the authorities cited by the learned counsel for the parties. I am of the view, prima facie, the petitioners are not connected with the constructive liability of the commission of offence of murder of Ali Zaib, deceased rather their case comes within the scope of further enquiry under the provisions of section 497(2) of Cr.P.C. It is settled principle of law that when in any criminal case the matter becomes of further enquiry then an accused person gets entitled to bail as a matter of right. In this respect reference can be made to Muhammad Arif Hussain v. The State (1999 M LD 939).
8. ' It is the prosecution case that the petitioners did not take part in the incident of motive, a year before and again did not accompany accused Zahid and Haji Ramzan at the time of threatening the complainant on the day prior to the day of occurrence. It is also admitted on the part of the prosecution that the petitioners were not armed with deadly weapons and neither they raised any Lalkara (/0) nor they committed any overt act at the time of the occurrence. It is also not disputed that at the time of the occurrence the petitioners even did not enter into the shop, the place of occurrence. It is again undenied by the prosecution that after the commission of the alleged offence the petitioners did not accompany the accused Zahid and Arshid Mehmood. The name of the petitioners does not find any place in F.I.R. And it is also on the record that the prosecution did not arrange any identification parade for the purpose of recognition of the petitioners. According to the prosecution story the occurrence was witnessed by complainant, Muhammad Hanif, Ansar Mehmood, Shahzad and Abid Nawaz but Alam Zaib complainant (P.W.2), Shahzad (P.W.3), Muhammad Hanif (P.W.4) and Ansar Mehmood (P.W.5) did not mention the names of the petitioners in their statements recorded under section 161 of Cr.P.C. On 1-9-1998 Abid Nawaz (P.W.6) and Arshid Mehmood (P.W.7), for the first time mentioned the names of the petitioners and stated that they also came down from the car with other accused Zahid and Arshid but the abovementioned witnesses did not depose in their statements as to whether the petitioners with other co-accused did enter in the shop of the deceased and they caused any injury to the deceased. It was also stated by the Abid Nawaz (P.W.6) and Arshid Mehmood (P.W.7) that the petitioners did not accompany Zahid Mehmood and Arshid Mehmood accused after the alleged commission of crime. In these circumstances it is the admitted position that the petitioners neither instigated the co-accused Zahid and Arshid Mehmood to open fire nor they entered the shop nor they caused any injury to the deceased or any other witness. No overt act was attributed to them.
9. The petitioners did not possess any weapon at the time of occurrence. No previous conspiracy was alleged against the petitioners with co-accused to commit murder. Therefore, their simple presence with co-accused unaccompanied by any criminal act makes out a case of further enquiry into their guilt and possibility is not precluded that they may not have the knowledge of the commission of the offence while sitting in the car with co-accused. Thus, the question of vicarious liability shall be determined at the time of the trial (1993 PCr.LJ 2242). In this respect I am also fortified by case-law reported as Muhammad Ashraf and 9 others v. The State (PLD 1985 Sh.C.
10. (AJ&K) 18).
11. ' I cannot agree with this contention of the learned counsel for the complainant that the petitioners had full knowledge of the pre-planned occurrence, therefore, their presence on the spot cannot discharge them from the constructive liability for the commission of the offence of murder. The learned counsel for the complainant has cited the case reported as Javed Iqbal and others v. The State (1994 SCR 11) in support of his contention. In this case the murder was committed at the odd hours of the night and the accused were also armed with lethal weapons. Therefore, the apex Court observed that the accused were connected with the constructive liability for the commission of offence of murder of Toqir, deceased but in instant case the occurrence did not take place in odd hours and the petitioners were not armed with deadly weapons. Thus, the authority referred by the learned counsel for the complainant is quite distinguishable and renders no help to him. This case has got its peculiar character as discussed above. In view of the above the trial Court did not exercise its discretion according to the admitted principles of law governing bail matters thus, the impugned order cannot be maintained.
12. For the foregoing reasons setting aside the order of the District Criminal Court, Mirpur, dated 22-1- 1999 and accepting the revision petition, I hold that the petitioners are entitled to bail at this stage.
13. The petitioners are allowed bail in sum of rupees one lac each with one surety in the like amount to the satisfaction of any Magistrate 1st Class, Mirpur. If the needful is done the petitioners shall be set free forthwith if not required in any other case.