' As above entitled revision petitions arise out of single judgment of District Criminal Court, Kotli passed on May 14, 1999, whereby Mirza Willayat Hussain, Hayat Ullah, Muhammad Arslan, Abid Gulzar and Muhammad Yasin respondents-accused were bailed out but Muhammad Jamil, Muhammad Shabbir, Qamar Zaman, Mirza Ikram, Muhammad Tahir, Tariq Gulzar, Muhammad Nawaz, Imran and Mirza Daud accused-petitioners were declined their request for release on bail, we propose to dispose of the same by this single judgment.
2. The accused-persons are facing charge of double murder, attempt to murder and causing hurt, by forming unlawful assembly as contemplated under sections 302, 324, 337, 147, 148 and 149, A.P.C.
Read with section 13/20/65, Arms Act.
3. The precise facts of the case, as disclosed in F.I.R., are that on January 30, 1999, at 4-00 p.m., when the complainant reached Khuiratta, he came to know that at about 12-00 p.m., Muhammad Jamil, Muhammad Shabbir son of Fateh Muhammad, Muhammad Jamil son of Muhammad Zaman, Muhammad Ikram, Muhammad Imran and Muhammad Daud quarreled with his son Muhammad Saeed and injured him. Muhammad Saeed got his first aid from Ayubi Hospital Khuiratta and went to Civil Hospital for further treatment. He and his younger son Nasir Hameed were waiting for Muhammad Saeed at outside of Ayubi Hospital. Meanwhile, Hukam Dad, Muhammad Afsar, Muhammad Ramzan, Muhammad Majid, Muhammad Ajaib, Muhammad Shafique, Muhammad Afzal and Muhammad Mujeeb came there to know about injuries of Muhammad Saeed. The complainant with abovementioned persons was standing outside of Ayubi Hospital when all accused-persons armed with deadly weapons, sticks and 'Dandas' led by Willayat Hussain and Hayatullah accused having common object of an intention to kill, launched an attack upon him and his companions. Willayat Hussain and Hayatullah raised a 'Lalkara' and asked other accused-persons not to let go alive the complainant and his companions. At this the accused-persons started firing. Muhammad Jamil son of Muhammad Zaman caused a fire with Kalashnikov upon Muhammad Afsar which hit him and he fell down while Muhammad Jamil son of Fateh Muhammad fired on Hukam Dad with a rifle. Muhammad Waseem attacked upon Muhammad Nasir with a stick on his head and injured him. Muhammad Shabbir also injured him with fire. Muhammad Ramzan was injured with a fire of Mirza Daud accused. Ikram fired on Ajaib with a shot of pistol. Tariq Gulzar caused a fire upon Majid. Imran made a fire with .12 bore gun in consequence of which a passerby Waheed Murad got injured. Qamar Zaman inflicted an injury with stick on the head of the complainant. Muhammad Tahir and Muhammad Nawaz also injured Muhammad Shafique with the sticks. Tahir Gulzar caused a blow of stick upon his left arm while Muhammad Arslan and Muhammad Yasin have been making fires.
4. The occurrence was witnessed by Muhammad Yunus Khan, Muhammad Irshad, Muhammad Mujeeb, Muhammad Afzal Subhani and many others. The motive behind the occurrence is that one and half month before, an altercation took place between the driver of Muhammad Shabbir and Muhammad Arif driver, who happens to be his relative. Shabbir and his driver were beating Muhammad Arif when his son Muhammad Saeed came to his rescue upon which Muhammad Shabbir had threatened his son that he will certainly take the revenge of the intervention.
5. On this report a case under sections 324, 147, 148, 149 and 337-A/A.P.C., was registered.
Muhammad Afsar and Nasir Hameed succumbed to their injuries and section 302, A.P.C., was also added. After usual investigation a challan was presented before District Criminal Court Kotli where the accused-persons are facing trial while Muhammad Jamil son of Fateh Muhammad and Waseem Hayat son of Hayatullah accused have absconded.
6. All the accused-persons except Muhammad Jamil son of Fateh Muhammad and Waseem Hayat, presented a bail application before District Criminal Court Kotli whereby the concession of bail was extended to Willayat Hussain, Hayatullah, Muhammad Arslan, Abid Gulzar and Muhammad Yasin whereas the bail was declined to Muhammad Jamil son of Muhammad Zaman, Muhammad Shabbir, Qamar Zaman, Mirza Ikram, Muhammad Tahir, Tariq Gulzar, Muhammad Nawaz, Imran and Mirza Daud. Feeling aggrieved by the order, dated 14th May, 1999 Muhammad Jamil and others accused-petitioners presented a bail application before this Court while Abdul Hamid complainant lodged an appeal for cancellation of the bait of Willayat Hussain and others.
The abovementioned order of District Criminal Court is the subject-matter of this judgment. I may observe here that Abdul Hamid has assailed the impugned order through an appeal which is not competent, rather a revision petition should have been presented. As no objection was raised by the other party, therefore, 1 treat this appeal as a revision-petition.
7. Mirza Muhammad Nisar, the learned counsel for the accused-petitioners strenuously argued that the Court below has not recorded any cogent reason for refusal of the bail to the petitioners. He also argued that prosecution has withheld the injuries of the accused-persons and did not produce independent evidence. He further pointed out that the prosecution is making improvements in its case, as according to F.I.R., and the complainant's statement recorded under section 161, Cr.P.C., Muhammad Shabbir accused has been attributed the fire-arms injury but according to the post-mortem report no fire-arm injury was found on the person of Nasir Hamid deceased. According to him, to fill this lacuna Muhammad Ajaib and Muhammad Shafique P.Ws.
Have introduced this fact in their statements that Muhammad Shabbir-accused after making a fire upon Nasir Hamid, deceased. Also launched an attack upon the deceased with butt of his rifle. He further' agitated that allegation against Tahir and Nawaz is that both of them injured Muhammad Shafique with sticks but it has not been stated that who inflicted the head injury and who attacked upon his arm. According to the Medico-legal report the nature of injury is simple and the weapon used is blunt. He maintained that Qamar Zaman accused is attributed to an injury with stick upon the complainant and according to medical report the said injury has also been shown simple caused by a blunt weapon. The nature of allegation against Daud accused is that he injured Muhammad Ramzan by fire-arm and Muhammad Ramzan also deposed in his statement recorded under section 161, Cr.P.C., that Daud accused caused fire upon him with 7-mm rifle which hit his right leg and head but according to medico-legal-report the head injury was found to be inflicted by a blunt weapon, therefore, the evidence of Muhammad Ramzan cannot be taken into consideration. The other P.Ws. Have also deposed likewise, therefore, they are not eye-witnesses of the occurrence and their evidence cannot be relied upon. The injuries of Waheed Murad has been attributed to be caused by a fire-arm but according to Medico-legal-report a lacerated wound was also found on his head, caused by a blunt weapon, about which nothing was stated by P.Ws. In this respect, he also referred an affidavit of Waheed Murad P.W., who deposed that the firing was made by both the parties and he did not know by whose firing he was injured. It was, alleged in F.I.R., that Tariq Gulzar accused injured Majid by a firearm but Majid P.W., deposed in his statement recorded under section 161, Cr.P.C., that Tariq Gulzar made a fire with 12 bore gun upon him but it did not hit him, on which Tariq Gulzar inflicted an injury on his face with the butt of rifle while the other injury was caused on the back side of his head. The said statement was improved by the prosecution to corroborate the injuries with the Medico-legal-report whereby the injuries on the person of Majid were found to be made by a blunt weapon, argued by the learned counsel for the petitioners. He also referred the statement of P.W., M. Irshad whereby Muhammad Irshad did not mention the fact of 'Lalkara' attributed to Willayat Hussain and Hayatullah. The learned counsel also submitted that the allegation of 'Lalkara' does not find any place in report under section 173, Cr.P.C., rather according to the abovementioned report the counter-version of the accused- persons has been corroborated. The learned counsel also laid stress on the fact that it has been proved on the record that Mirza Hayatullah did not participate in the occurrence. The learned counsel also pressed into service the submission that complainant party launched an attack upon the accused-persons consequently Imran, Tariq and Nawaz accused were injured. A fire-arm injury was caused upon Muhammad Nawaz but police did not refer the accused-person for medical treatment and X-Ray.. Finally, he contended that it is not a case of unlawful assembly, rather all the accused-persons were busy in their business at the place of occurrence and their presence at the scene of occurrence is natural. He defended the impugned order to the extent of Willayat Hussain, Hayatullah, Abid Gulzar, Muhammad ArsIan and Muhammad Yasin but criticized the same to the extent of other accused-persons and submitted, that accused-petitioners may also be released on bail. In support of his contentions he referred the following authorities:---
(i) PLD 1988 SC (AJ&K)148; (ii) 1991 PCr.LJ 1856; (iii) 1995 SCR 104-237;. (iv) 1997 SCR 125.
8. On the other hand, Mr. Abdul Majeed Mallick, the learned counsel for the complainant, vigorously argued that the present case is a case of unlawful assembly and constructive liability. He further argued that style and nature of occurrence, contribution of the accused party and the overt act attributed to them fully prove the commission of the crime. He also submitted that the accused party organized the unlawful assembly, incited the accused party who deliberately planned and committed the murder of two innocent persons. He maintained that F.I.R. Carries the relevant facts which cannot be ignored at bail stage. According to him, the presence of Abdul Hamid has been admitted by the defence and it has been stated by the accused party that when complainant came, he was accompanied by 250 persons. The learned counsel for the complainant pointed out that no counter-version has come forward because no counter F.I.R. Or private complaint was lodged by the accused-persons. Thus, the application of one of the accused, as the best can be treated as an accused version or his explanation which is not the part of judicial record. He further submitted that the occurrence, time of occurrence, the place of occurrence and presence of complainant accompanied by 250 persons is admitted by defence. If according to accused party, 250 persons attacked with Guns then as to why no injury was found on the persons of the accused party. He also argued that the detail study and minute scrutiny of the P.Ws. Is not allowed at the bail stage and according to the tentative assessment of the material placed on the record, the accused persons can safely be connected with the commission of crime. He further contended that mere relationship of P.Ws. Is no ground for rejection of the testimony of P.Ws. He maintained that injuries of the accused-persons are artificial and self-inflicted because pellets were not found in the body of Muhammad Nawaz accused and no exist injury has been mentioned and kind of weapon has also not been described. The learned counsel also pressed into service the submission that points of contradiction and improvements of prosecution cannot be considered at bail stage.
He further agitated that the affidavits were not filed before trial Court or this Court. Therefore, cannot be relied upon. He further submitted that trial Court tried to build a good case in favour of defence but hesitated to give its verdict. Therefore, the impugned order is illegal, unlawful and perverse. He also contended that the accused party assembled, planned made preparation, came all the way and killed two persons and injured others. He finally, submitted that the concession of bail may be recalled and petition of bail for other accused-persons may be dismissed. In support of his arguments he cited the following case law:---
(i) PLD 1967 SC 340.
(ii) PLD 1978 SC 236.
(iii) PLD 1987 SC (AJ&K) 27.
(iv) PLD 1989 St.
13.
(v) PLD 1989 SC 633.
(vi) PLD 1991 Azad J&K 70.
9. Mr. Muhammad Mushtaq Chaudhry, the learned Additional Advocate General, supported the arguments of the learned counsel for the complainant on all counts.
10. I have carefully taken into consideration the points canvassed by the learned counsel for the parties, after perusing the record made available with care. From the facts and circumstances listed above, it appears that Muhammad Jamil son of Muhammad Zaman fired upon Muhammad Afsar deceased by a Kalashnikov inconsequence of which he died. It is also alleged that Muhammad Shabbir fired upon Nasir Hamid deceased and injured him, who also died. Mirza Ikram accused has been attributed to cause a fire of pistol upon Muhammad Ajaib (P.W.2), whereas Majid (P.W.6) received fire-arm injury attributed to be caused by Tariq Gulzar accused. Likewise lmran accused is attributed to a fire-arm injury with a .12 bore gun upon Waheed Murad (P.W.8).
Daud is accused of having caused a fire-arm injury to Muhammad Ramzan (P.W.5). The abovementioned allegations prima facie find support from the medical evidence as well as from the evidence of recovery of deadly weapons, at the instance of accused-petitioners. On this account Muhammad Jamil son of Muhammad Zaman, Muhammad Shabbir, Mirza Ikram, Tariq- Gulzar, lmran and Mirza Daud accused-petitioners, prima facie, can be connected with the commission of a crime which is punishable with death or imprisonment for life. Thus, their case falls into the category of subsection (1) of section 497, Cr.P.C. And in such type of cases refusal of bail is rule and its acceptance is an exception. Therefore, an exercise of discretion by the Court below, to the extent of these accused-petitioners does not seem to be perverse or whimsical and impugned order has been recorded according to the admitted principles of law governing the bail matters.
11. It will be pertinent to note here that according to this contention of the learned counsel for the accused-petitioners that in F.I.R. And in the statement recorded under section 161. Cr.P.C. The complainant deposed that Muhammad Shabbir accused injured Nasir Hamid, deceased, with a fire but an improvement has been made by the prosecution that after making fire Muhammad Shabbir accused also launched an attack upon deceased with the butt of the rifle, which makes the case of prosecution suspicious and doubtful. There is no substance in this arguments because the version in F.I.R. And the statements of eye-witnesses are not to be considered as prosecution case at this stage because the present case is at the initial stage of the hearing which is reflected in the final police report under section 173, Cr.P.C. And this very report is construed to be the prosecution case for any purpose. My this view finds support from the case reported as Anjum Nisar Mir and another v. The State through Advocate-General (PLD 1988 SC (AJ&K) 198). On this account, the fact of improvements cannot be considered at the bail stage and close scrutiny of the merits of the case is not permissible and only tentative assessment of the prosecution evidence has to be made. If the Court is satisfied that the material collected by the prosecution is sufficient to hold that the reasonable grounds do exist to believe that the accused is guilty then the bail cannot be allowed. It must be such grounds and material as, prima facie, induce a person of ordinary prudence to believe that the accused is guilty of a non-bailable offence.
12. As far as the case of Qamar Zaman accused is concerned, he has been ascribed to inflict a blow of stick upon the head of complainant who received a simple injury in shape of lacerated wound on the back side of the head. Muhammad Tahir is accused of causing injuries upon the person of Muhammad Shafique who also received simple injuries, lacerated wound on the forehead and a bruise on the right side of the shoulder. Muhammad Nawaz accused also attributed to launch an attack with a stick upon said Muhammad Shafique (P.W.4). The abovementioned accused-persons neither caused an injury to the deceased persons nor they used any deadly weapons. No fatal injury is attributed to them. In this view of the matter, their case is altogether different from other accused-persons and it is yet to be determined as to whether the said accused-petitioners took part in the occurrence in furtherance of the common object of other accused-persons and their quantum of liability will have to be determined at the time of trial.
13. It is also on the record that Nasir Hamid deceased did not state an overt act about these accused-persons. Likewise, Muhammad Ramzan (P.W.5), Majid (P.W.6), Muhammad Zafeer (P.W.7), Waheed Murad (P.W.8), Muhammad Yunus (P.W.9), Raja Amratullah Khan (P.W.10), Afzal Subhani (P.W.11) and Hukam Dad (P.W.16) did not invovle the above accused-persons in the commission of crime, in their statements recorded under section 161, Cr.P.C.
14. The record also bears this fact that the statements of Muhammad Shakeel (P.W.12), Havaldar Muhammad Sharif (P.W.13), Tufail (P.W.14), Muhammad Irshad (P.W.15) were recorded on 4-2-1999 while statement of Mujeeb (P.W.20) was recorded on 5-2-1999 and the statements of Hukam Dad (P.W.16), Raja Mehmood (P.W.17) and Muhammad Malik (P.W.19) were recorded on 19-2-1999 under section 161, Cr.P.C. In such state of affairs, prima facie, these accused persons cannot be connected with the commission of crime and their case falls into the category of further probe and inquiry but the trial Court was mistaken to decline their plea of bail. Thus, the exercise of discretion by the Court below to the extent of Qamar Zaman, Muhammad Tahir son of Muhammad Khalil and Muhammad Nawaz accused petitioners does not seem to be an act of judicial character requiring a fair and just exercise of justice. Thus, the impugned order cannot be upheld to the extent of the abovementioned accused petitioners.
15. Willayat Hussain, Hayatullah, Tahir Abid son of Gulzar Hussain, Ikram and Muhammad Yasin were extended the concession of bail by the Court below which has also been challenged by the complainant. Talir Abid son of Gulzar is accused of inflicting an injury upon the left arm of the complainant while Arslan and Muhammad Yasin were accused of making fires. As it has been held above in case of Qamar Zaman, Tahir son of Khalil and Muhammad Nawaz accused-petitioners, Tahir Abid son of Gulzar, Arslan and Muhammad Yasin accused-persons are also prima facie, do not come in the purview of the commission of crime and reasonable grounds do not exist to prove their guilt and their case also needs further inquiry and quantum of their liability will also have to be determined at the time of trial.
16. The learned counsel for the complainant, much emphasized upon the role of Willayat Hussain and Hayatullah accused and it was argued that both the accused persons led the unlawful assembly and incited them to attack upon the complainant party. I have considered the role of said accused persons with care. It is also mentioned in the police record that sufficient material is not available to involve Hayat Ullah, Willayat Hussain, Arslan and Tahir Abid accused-persons in the case. The challan report under section 173, Cr.P.C. Does not disclose the allegatio of raising a 'Lalkara' by Willayat Hussain and Hayatullah accused-persons. The said accused persons did not inflict any injury either to the deceased or the prosecution witnesses. No weapon of offence was recovered from them. In these circumstances, their case also needs further probe into their guilt and exercise of discretion by the Court below in their favor was according to the rules and reasons which does not imply the presence of arbitrariness or perversity.
17. It will also be relevant to note here that the complainant has moved the revision for cancellation of bail. It is admitted principle of criminal law that once bail is allowed, the concession cannot be withdrawn until and unless the order is shown capricious and whimsical or illegal and irregular.
18. There can be no cavil with the proposition laid down in the case of Jalal Din and others v. The State (PLD 1967 SC 340), where 'Lalkara' itself was deemed sufficient overt act to establish the abetment but it was also opined by the learned Judge that question of abetment must be decided on an appreciation of all facts, including the degree of interest in the crime possessed by the person who shouted the 'Lalkara' and the part played by him in the commission of crime. The above mentioned judgment was also relied upon in the case reported as Muhammad Manzoor and another v. The State (PLD 1991 Azad J&K 70), referred by the learned counsel for the complainant, whereby the abettors of the principal accused were made vicariously liable for the commission of crime but in this case all the accused persons collectively fired on the deceased and gave him beating who suffered various injuries on different parts of his body and died on the spot. There is no such situation in the present case.
19. In Nazar Muhammad's case (PLD 1978 SC 236) two accused were bailed out who were not alleged to have inflicted any injury to the deceased, but were alleged to have caused a simple injury to the complainant. It was also opined in the case that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case.
20. In Karamat Hussain's case (PLD 1987 SC (AJ&K) 27 the accused alongwith real culprits chased the victim to the house where he was done to death by use of firearms, upon which the bail was refused to them. The cases cited by the learned counsel for the complainant, referred to above, have circumstances not identical with the one available in the present case and, therefore, are distinguishable.
21. It is admitted position of law that the principle of unlawful assembly and sharing the common object is to be construed in the light of the each case. The facts and circumstances of the present case do not provide sufficient evidence to accept an attribution of unlawful assembly sharing the common object ascribed to the accused-petitioners. It is also the basic principle of law that the question of common intention and abetment must be decided by the trial Court on an appreciation of all the facts and attending circumstances of the case.
22. It might be useful to mention here that the mere heinousness or gravity of offence itself is no ground for the refusal of the bail. Although this is one of the factors coupled with prima facie involvement of the accused with the commission of offence to be taken into consideration for deciding bail matters but it is not the only factor to be given much importance.
23. Keeping in view the conclusion arrived at by the Investigating Agency, the presence of the companions of complainant, prima facie, inconsistency in the deposition of the prosecution evidence coupled with the defence version and injuries on the persons of accused-petitioners, prima facie, bring their case within scope of further probe and inquiry. The trial Court, though expressed its opinion in sketchy manner, yet it arrived at a proper conclusion to the extent of Willayat Hussain, Hayaullah, Tahir Abid son of Gulzar, ArsIan and Muhammad Yasin accused- petitioners. Therefore, the exercise of discretion to the extent of abovementioned accused respondents is not perverse or bad in law which cannot be lightly interfered with.
24. Without going into the intricacies of the merits of the case, so that it may not prejudice the case of either party, prima facie, I feel that the instant case requires further inquiry regarding the involvements of Willayat Hussain, Hayatullah, Tahir Abid son of Gulzar, Arslan, Muhammad Yasin, Qamar Zaman, Muhammad Tahir son of Muhammad Khalil and. Muhammad Nawaz which can only be established during the trial, which has already commenced. The case of the abovementioned accused persons clearly falls within the purview of subsection (2) of section 497, Cr.P.C. Even otherwise, the accused persons are no more required for the purpose of investigation and no useful purpose shall be served while keeping them in the judicial lock-up for an indefinite period.
25. On the above premises of reasoning, I am fully persuaded to admit Qamar Zaman, Muhammad Tahir son of Muhammad Khalil and Muhammad Nawaz accused-petitioners to bail provided they furnish bail bonds in sum of Rs, 3,00,000 (rupees three lac) each with one surety each in the like amount to the satisfaction of any Magistrate 1st Class Kotli. If the needful is done, the accused- petitioners shall be set at liberty if not required in any other case or offence. Consequently, the revision petition filed by the complainant also fails which is dismissed.