' Through the instant criminal miscellaneous bail after arrest is sought for the petitioner in case F.1.R.
No,168, dated 30-5-1997 registered at Police Station Banni, District Rawalpindi under sections 302/34 and 337-A(i)(ii), P. P.0 .
2. The facts as disclosed in the F.I.R. By the complainant Sosan Bibi wife of the deceased Bashir Masih are that she is resident of Mohallah Raja Sultan and that in the upper story of the house situated in that Mohallah lived one Khushi Masih with his family and in the ground floor of the said house the complainant along with her husband and children were living and that she was employed in the Municipal Corporation; that on the night between 23/24-51997, the engagement of the son of Khushi Masih took place and his entire family had gathered on the occasion. The ceremony ended at about mid-night. When the guests of Khushi Masih were leaving, there was so much of noise that it awakened complainant's family who were asleep at that time. The complainant further alleged that her husband Bashir Masih did not like being disturbed while asleep and protested to Khushi Masih against the noise. The protest of the complainant's husband offended Khushi Masih and his sons Ijaz Masih and Shahzad Anjum and they threatened the complainant's husband that nobody could stop them from using their house in the manner they thought fit; that Shahzad Anjum son of Khushi Masih got infuriated and took out Chhuri from underneath his clothes and Ijaz Masih petitioner caught hold of the complainant's husband Bashir Masih with a Japha from behind and Shahzad Masih gave a Chhuri blow to Bashir Masih in his abdomen, whereby Bashir Masih was badly injured. Khushi Masih hit the son of the complainant with a brick which hit the boy on his head. The complainant goes on to allege that Asif Masih hit the complainant's daughter Khalida Bibi with a piece of brick which hit the complainant's daughter on her face and thereby she was injured. The occurrence attracted lot of people including Younas Masih at the site. Bashir Masih succumbed to the injuries sustained by him at the hands of Shahzad Masih son of Khushi Masih and died on 28-5-1997. In this background of facts, the F.I.R. Was lodged.
3. The petitioner having been arrested pursuant to the F.I.R. Registered against him, applied for bail after arrest before the learned Sessions Judge, Rawalpindi, on 30-5-1998 which was entrusted to the Court of Ch. Muhammad Younas, learned Additional Sessions Judge, Rawalpindi who rejected the same vide his order, dated 22-6-1998. Hence this petition before this Court.
4. Raja Imtiaz Ahmad Kiani, learned counsel for the petitioner appearing in support of the instant petition has urged the following grounds for the enlargement of the petitioner on bail:--
(i) that the other co-accused Asif Masih and Khushi Masih have already been enlarged on bail by this Court against whom similar allegations were leveled in the F.I.R. The petitioner is entitled to the same treatment and his case also merits to be considered on the basis of principle of consistency;
(ii) that the fatal blow which resulted in the death of the deceased Bashir Masih was attributed to Shahzad Masih and not to the present petitioner;
(iii) that the only allegation against the petitioner was that he held the deceased with a Japha from behind and it was Shahzad Masih who dealt the Chhuri blow to the deceased;
(iv) that the case of the petitioner who held the deceased only with a Japha is a case of further inquiry.
5. Malik Muhammad Kabir, learned A.A.-G., Punjab appearing on behalf of the State has controverted the aforesaid submissions made on behalf of the learned counsel for the petitioner and has opposed strongly the grant of bail to the petitioner. Learned Law Officer submits that the petitioner is clearly named in the F.I.R.; a definite role is assigned to him; that he held the deceased with a Japha and thereby facilitated his being given Chhuri blow by and at the hands of Shahzad Masih resulting in the death of the deceased; that but for the Japha given by the petitioner to the deceased, it would not have been possible for Shahzad Masih to inflict the Chhuri blow effectively on the person of the deceased, so as to cause his death; that the petitioner in the circumstances, was as much guilty of causing the death of the deceased and participating in the crime as was Shahzad Masih who gave the Chhuri blow to the deceased. The learned Law Officer submitted with some vehemence that the petitioner in this background of facts is not entitled to the concession of bail. The learned I 'w Officer very strongly refuted the contentions of the learned counsel for the petitioner that the petitioner was entitled to the concession of bail on the basis of principle of consistency keeping in view the fact that the other co-accused namely Khushi Masih and Asif Masih had already been enlarged on bail. Learned Law Officer submitted that the case of the said two co-accused stood entirely on different footing. Of the said two co-accused, Asif Masih was accused of having caused only a brick blow to Khalida Bibi complainant's daughter. He had not caused any blow to the deceased or in any manner facilitated his death. As regards Khushi Masih he was only attributed a proverbial Lalkara. Learned Law Officer submitted that the facts of the cases of the said co-accused were, thus, quite distinguishable from those of the present petitioner.
He cannot, therefore, ask for a similar treatment. In support of his submissions that the present petitioner held the deceased with a Japha and thereby facilitated his being hit with Chhuri blow by the other co-accused Shahzad Masih which ultimately resulted in his death, reliance was placed by the learned Law Officer on Hakam Ali and 3 others v. The State 1979 SCMR page 114 and Mst.
Barkat Bibi v. Gulzar and others 1979 SCMR page 65. In both the reported cases the accused seeking bail were accused of giving Japha and were refused bail. In case reported as 1979 SCMR page 65, the bail already granted by the High Court on the basis of the allegation of Japha was directed by the Honorable Supreme Court to be cancelled. Further reliance was placed by the learned Law Officer on Munawar v. The State 1981 SCMR 1092. In this case also the allegation against the petitioner was only of giving Japha to the deceased but he was refused bail on the ground that the petitioner was vicariously liable for the commission of the offence of murder.
6. I have considered and evaluated the respective submissions of the learned counsel for the parties and have perused the record. Learned counsel for the petitioner relied heavily on the orders passed by this Court whereby bail was granted to the co-accused Khushi Masih and Asif Masih and contended that the petitioner be also meted out the same treatment. I am afraid, the contention of the learned counsel for the petitioner in this behalf is not very well-founded. The cases of the said co-accused Khushi Masih and Asif Masih stood entirely on different footing and were distinguishable. One of the two accused was attributed only a proverbial Lalkara whereas the other co-accused Asif Masih was only alleged to have caused a brick blow to Khalida Bibi P.W.
Such, however, is not the case of the present petitioner. The allegation against him is that he held the deceased with a Japha from behind and thereby facilitated his being hit by Shahzad Anjum with Chhuri blow resulting in the death of the deceased. The role played by the present petitioner was, thus, not only distinguishable from that of the other co-accused Khushi Masih and Asif Masih but also was very important and pertinent. Had he not held the deceased with a Japha as alleged, perhaps it would not have been that easy for Shahzad Masih to have effectively dealt Chhuri blow on the deceased. The role, thus, played by the petitioner in the present cage is pivotal. Learned Law Officer in support of the submissions that in a case such as the one alleged against the present petitioner bail was declined by the Honorable Supreme Court referred to 1979 SCMR page 65 and 1979 SCMR page 114. In both these cases the allegations against the accused who was refused bail by the Honourable Supreme Court was that of giving Japha to the deceased. In the circumstances, therefore, I feel inclined to uphold the submissions made by the learned Law Officer and, accordingly, dismissed the instant criminal miscellaneous.