' Through this petition the petitioner seeks the concession of bail in favour of the petitioner- accused, which was declined by District Criminal Court Bhimber on 13-2-1999.
2. The facts forming the background of the petition are that Raja Umer Farooq lodged an F.I.R. On 3- 2-1998 at about 11-00 p.m. At Police Station, Mirpur and stated that at 9-30 p.m. When he with his brother Qamar Zaman came back home on his Car/8886/AJKC after making a telephone call to his sister in U.K., he found Shabbir Hussain, Bagh Hussain, Abdul Hussain and Faisal Shabbir, who were coming out of their house armed with weapons, iron bars and sticks. As soon as he and his brother Qamar Zaman came down of the car, the accused launched an attack upon them in a pre-planned manner with a common intention to kill and started beating them. Because Of the noise his brother Tahir Ali also came out of house. Shabbir Hussain-accused who was armed with .12 bore gun shot a fire upon his brother Qamer Zaman which hit upon his chest, who fell down.
Faisal Shabbir accused also hit upon the head of Tahir Ali with an iron bar, consequently, he also fell down. Bagh Hussain and Abdul Hussain accused also hit him and his brother Qamar Zaman with the sticks. After the occurrence, the accused went into their house while making fires. He took away his injured brother Qamar Zaman to District Headquarter Hospital, who succumbed to his injuries. The motive behind the occurrence is that he has installed a pegion cage on the outer side of his house, which is also allotted to them, but the accused wanted to take possession of the above stated place and for the reason they became inimical to the complainant and the deceased. On this report, a case under sections 302, 324 and 337-A of Penal Code was registered.
After usual investigation the petitioner-accused along with co-accused were sent for trial. The trial Court recorded the statements of the accused under section 242, Cr.P.C., on 24-3-1998 and the case was fixed for the evidence of the prosecution. The petitioner-accused was allowed bail on 16- 6-1998, but the case was remanded by this Court on 11-7-1998 and it was also directed that the trial Court shall record its finding about the application of section 34, A.P.C., meanwhile a subsequent challan was presented by the Police and section 34, A.P.C. Was also added with other offences already listed in calendar of challan. Feeling aggrieved by the said order of the trial Court, the accused again approached this Court, but the revision-petition was dismissed and proceedings taken by the trial Court prior to the institution of the subsequent challan were quashed vide order, dated 12-2-1999. The trial Court again recorded the statements of the accused under section 242, Cr.P.C. On 3-4-1999 and the case is pending for the prosecution evidence. Meanwhile, one of the accused, Abdul Hussain, died and the bail application of the petitioner-accused was dismissed by District Criminal Court Bhimber on 13-2-1999. Now the petitioner-accused has presented another bail application before this Court, which is the subject-matter of this order.
3. Mr. Muhammad Sharif Tariq, the learned Counsel for the petitioner, vehemently argued that the sole attribution to the accused-petitioner is that he inflicted an injury on the person of the deceased with a stick, which is simple in nature and was not fatal because according to the post- mortem report the deceased died due to the gun shot fire. He also contended that both the accused Shabbir and Abdul Hussain also sustained injuries during the occurrence, but the prosecution deliberately suppressed them. He pointed out that the disputed plot is not allotted to the complainant rather the adjacent land is allotted in the name of the accused party. According to him, the complainant party was aggressor who created trouble and removed the iron cage and placed it at the outside of the house of the accused party, thus, the accused acted in their self- defence. He further submitted that no preconcert and premeditation has been proved by the prosecution which could prove the common intention of the petitioner-accused. Therefore, the petitioner is entitled to bail. It was also argued by the learned counsel for the petitioner that the prosecution version is not definite as to whether which part of the person of the deceased was hit by the petitioner-accused and which part was hit by Abdul Hussain accused (not before us). He agitated that it is also not clear from the prosecution evidence as to whether both the injuries were inflicted with sticks by the accused-petitioner or by both the accused. He maintained that if the Court comes to the conclusion that according to the prosecution case, if taken to its extreme would not endorse the maximum punishment and would go out of the prohibition contained in subsection (1) of section 497, Cr.P.C. The Court is at liberty to grant bail. He finally submitted that fatal injuries ate not attributed to the petitioner-accused. Thus, the case of the petitioner falls in the category of further inquiry but the trial Court was misconceived and the bail application was dismissed in an erroneous manner. In support of his contentions he cited the following case-law:- (i)1973. PCr.LJ 205 (ii)1978 SCM R 7 (iii)1983 PCr.LJ 1558 (iv)PLD 1992 Sh.C. (AJK) 7 (v)1997 PCr.LJ 156.
4. While replying the arguments of the learned Counsel for the petitioner, M. Azam Khan, the learned Counsel for the complainant, vigorously contended that the F.I.R. Was promptly lodged and petitioner is clearly nominated therein. A specific role was attributed to him and two injured eyewitnesses Umer Farooq and Tahir Ali fully support the prosecution version in their statements recorded under section 161, Cr.P.C. He also argued that the place of occurrence is admitted and two empties of .12 bore gun, iron cage, damaged car of the complainant were seized by. The Police. The weapons of offence have also been recovered from the accused including the petitioner. He pointed out that the site-plan proves the presence of the accused at the place of occurrence. He finally maintained that the prosecution has established a good prima facie case against the accused. Thus, the trial Court has rightly declined the concession of bail which may be upheld.
5. Mr. M. Mushtaq Chaudhry, the learned Counsel for the State owned and supported the arguments advanced by the learned Counsel for the complainant.
6. After hearing the respective contentions of the learned Counsel for the parties and perusing the record made available with case, it is found that F.I.R. Was promptly lodged and the accused- petitioner was clearly nominated with his specific role during the occurrence which not only, prima facie, finds support from the ocular version but medical evidence also corroborates it. The presence of the accused on the place of occurrence is admitted. The cursory perusal of the statements of the injured P.Ws. Umer Farooq and Tahir Ali, recorded under section 161, Cr.P.C. Fully support the prosecution story. The parties are neighbour, therefore, the question of identification is not disputed. It is also on the record that besides the fire-arm shots the bruises and an abrasion were also present on the right and left shoulders and the upper arm of the person of the deceased.
Furthermore, Dr. Noor Hussain P.Ws. Has certified that the abovementioned injuries were likely to be inflicted to the deceased by the blunt objects recovered by the Police.
7. There is another allegation against the accused-petitioner to inflict injuries on the head and forearm of the complainant. Umer Farooq with accused Abdul Hussain which is also corroborated by the statements of the eye-witnesses and the medical evidence. Therefore, prima facie, it has been established by the prosecution that the petitioner-accused was present at the scene of occurrence with other accused who were armed with rifle, iron bars and sticks, who injured the P.Ws. And committed the murder of the deceased. Thus, the accused, prima facie, shared the common intention of the other accused and culminated the commission of crime.
8. It will be premature to hold at this stage as to whether the complainant created trouble and the accused acted in their self-defence. These matters will be resolved after the prosecution evidence.
9. In these circumstances, the trial Court has rightly and judiciously passed the impugned order and exercised its discretion according to the admitted principle of law governing the bail matters which does not call for any interference by this Court.
10. The learned counsel for the petitioner-accused has cited various authorities in support of his contention, but these do not render any help to him because of the distinguishable facts.
11. A case reported as Reaz Ahmad v. The State 1983 PCr.LJ 1558, the accused was held responsible only for a simple abrasion on calf of the deceased. Thus, was allowed bail.
12.
12. In case reported as Muhammad Akbar and 4 others v. The State and another 1978 SCM R 7, the accused was not alleged to have inflicted injury on the deceased but was alleged to have caused simple injuries to the complainant. Therefore, the accused was bailed out.
13. In case reported as Muhammad Waheed v. Muhammad Saleem and 4 others 1997 PCr.LJ (SC
(AJK) 156), the accused had caused simple injuries to a prosecution witness and they were not assigned an overt act towards the deceased. Therefore, the concession of bail was extended to such accused.
14. In Mehboob Khan and 3 others v. The State and 4 others PLD 1992 Sh.C. (AJ&K) 7, it was opined that when the Court comes to the conclusion that the evidence placed before it is insufficient to connect the accused with the offence or some doubt appears from such, evidence the accused is entitled to the benefit of the bail.
15. In Amir v. The State 1973 PCr.LJ 205, it was laid down that when the Court reaches to the conclusion that according to the 'facts of the prosecution case extreme punishment cannot be awarded then bail can be granted to the accused.
16. It follows from the detail scrutiny of the abovementioned authorities that it is not a settled rule of law that in every case where an accused has not been alleged with a fatal injury to the deceased, must be bailed out but it will be relevant to note that every criminal case has its own peculiar facts and in the light of those facts and the evidence which prosecution proposes to examine, the case has to be decided. I am conscious of the fact that at the bail stage the Court has to make tentative appraisement of the evidence placed before it and should avoid from deep appreciation of such material. Therefore, the other arguments of the learned Counsel for the petitioner need not to be discussed in detail because these deal with the merits of the case.
' For the foregoing reasons, finding no force in the bail petition, it is hereby dismissed.