' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal is directed against the .Order passed by the Shariat Court on 30-6-1999, whereby concurring with the view of the District Court of Criminal Jurisdiction, Muzaffarabad, the appeal of appellants Nos.1 to 5 was dismissed and their plea for releasing them on bail was rejected while accepting the revision petition filed by Sher Afzal, complainant, the order of District Criminal Court, Muzaffarabad releasing appellant No,6, Sajjad Hussain, on bail was set aside and his bail was cancelled. All the six accused through this appeal have assailed the judgment of the Shariat Court, dated 30-6-1999 and sought their release on bail.
2. Necessary facts giving rise to the present appeal are that a case No,139 of 1999 for committing offences under sections 302, 324, 147, 148 and 149, A.P.C. Was registered at Police Station, Muzaffarabad on 24-3-1999. It was alleged in the F.I.R. That complainant alongwith his son Nisar Hussain and daughter-in-law, Mst. Rubina Bibi, were going to their offices as usual when at about 8-00 a.m. They arrived near Arand Bridge and they were about to board a Suzuki van in order to reach their destination, they were attacked by Khadim Hussain, Altaf Hussain, Sabir Hussain, Shafqat Hussain, Sajjad Hussain, sons of Sher Ahmad and Nadeem son of Khadim Hussain and his other brother whose name was not known to the complainant. Khadim Hussain accused was armed with .7 mm rifle, Altaf Hussain with kalashnikov and Sabir Hussain with a .12 bore gun. The accused persons opened fire upon the complainant party on account of which Nisar Hussain and Mst. Rubina Bibi were injured. The complainant was also injured with sticks and stones used by the accused. It was further alleged in the F.I.R. That an amount of Rs,7,250 was snatched away by accused Khadim Hussain, Altaf Hussain and Sabir Hussain. The injured persons were taken to the hospital by a Suzuki driver and the complainant proceeded to Police Chowki Rara for lodging the report. The motive behind the crime is stated to be a dispute over a piece of land on account of which the parties were at daggers drawn.
3. The Police initially registered the case under sections 324, 147, 148 and 149, A.P.C. And 17, E.H.A. But later on section 302, A.P.C. Was added as Nisar Hussain injured person succumbed to the injuries in the hospital. During the investigation the other injured persons were also referred to the hospital.
Accused, Altaf Hussain and Sabir Hussain also received injuries during the incident and they were also referred to the hospital. The medico-legal reports pertaining to the injuries of the complainant party as well as accused were also brought on file by the prosecution. The post-mortem report of the deceased was also placed on record. For allegedly committing the aforesaid offences the accused were apprehended by the Police and the weapons of offence a kalashnikov, .7 mm rifle, .12 bore gun and 2 sticks were recovered at the instance of the accused persons. During the investigation two crime empties of kalashnikov were also recovered from the place of occurrence.
The Police after the necessary investigation and collection of evidence forwarded the accused to face their trial before the District Court of Criminal Jurisdiction, Muzaffarabad for the offences allegedly committed by them under sections 302, 324, 147 and 148/149, A.P.C. A counter-report was also lodged by the accused party on the same day at about 11-00 a.m. Alleging therein that the complainant party entered into the Oil Mill of the accused which is situated nearby the road and inflicted injuries upon accused persons. However, after necessary investigation the Police dismissed the case filed by the accused.
4. The accused for their release on bail moved an application before the District Court of Criminal Jurisdiction, Muzaffarabad but their bail plea was rejected vide order of the Court, dated 19-5-1999, except Sajjad Hussain, appellant No,6, who was allowed bail. Against the aforesaid order of trial Court, dated 19-5-1999, accused-appellants Nos.1 to 5 filed an appeal before the Shariat Court while the complainant assailed the order of the release of Sajjad Hussain, appellant No,6 on bail.
The Shariat Court vide its order impugned, dated 30-6-1999, as said earlier, dismissed the appeal of appellants Nos.1 to 5 and concurred with the view of the trial Court. However, by accepting the appeal of the complainant the bail of Sajjad Hussain, accused-appellant, was also cancelled through a consolidated judgment. It is the aforesaid judgment of the Shariat Court which is the subject of present appeal.
5. Sardar Rafique Mahmood Khan, the learned counsel for the accused-appellants, vehemently contended that as a matter of fact the complainant party was the aggressor who initially attacked while entering into the Oil Mill of the accused where they were engaged in their normal business.
According to the learned counsel the complainant party was inimical to the accused over a dispute on a piece of land thus they attacked on the accused party in order to take revenge. It was for this reason, according to the learned counsel, that the accused were also injured. The learned counsel submitted with vehemence that the injuries sustained by the accused were suppressed by prosecution. Neither at the time of lodging the F.I.R. Nor at the time of getting their statements recorded before the Police the prosecution witnesses disclosed the infliction of injuries on the accused persons. In the estimation of the learned counsel the suppression of the injuries on the persons of the accused made the prosecution case doubtful as the same remained unexplained.
The learned counsel also contended that a counterF.I.R. Was lodged by the accused persons on the same day but the Police with the connivance of the complainant party and with mala fide intents dismissed the case registered against complainant party. The learned counsel further argued that fatal injury was attributed to accused Altaf Hussain only and the other accused played no role in doing away with the death of the deceased. The trial Court as well as the Shariat Court, according to the learned counsel for the appellants, disallowed the bail to the appellants in violation of settled principles governing the bail matters. The learned counsel further submitted that from record a appears that a false and concocted case has been registered against the whole family members of the accused in order to take revenge. Thus, it was in the interest of justice to enlarge the accused-appellants on bail.
6. In reply Kh. Shahad Ahmad, the learned counsel for the complainant and Raja Shiraz Kayani, the learned Advocate-General, argued that the order of the Shariat Court suffered from no material illegality or irregularity. According to the learned counsel, Sajjad Hussain appellant was released on bail by the trial Court in violation of the settled principles governing the bail matters. The learned counsel strenuously argued that all the accused persons attacked the complainant party with a common object to kill them and to achieve a common object caused injuries as a result of which one person succumbed to the injuries and others were injured during the attack. Thus, according to the learned counsel, all the accused being members of unlawful assembly were vicariously liable for commission of offence of murder and none of them was entitled to the concession of bail.
According to the learned counsel the case of Sajjad Hussain was also on equal footing with the other accused persons and he was wrongly released on bail by the trial Court. The learned counsel strenuously contended that the injuries sustained by the accused persons during the incident were not suppressed by the prosecution as the injury sheets and medico-legal reports were placed on the record by the Police. The learned counsel also submitted that apart from the injured witnesses some independent and natural witnesses have also supported the case of the prosecution. The learned counsel for complainant pressed into service the submission' that the occurrence took place on the road side as alleged by the prosecutions and this version finds support from the injured witnesses as well as the independent witnesses, whereas the version of the accused party that they were attacked by the complainant party in their Oil Mill has not been believed by the Investigating Agency.
7. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated at the very outset that it cannot be laid down as an inflexible rule of law that question of vicarious liability cannot be determined at the stage of bail. If in the circumstances of the case it can be gathered that the accused pre-planned a scheme, hatched a conspiracy and in execution of that plan or conspiracy that participated in the commission of offence, the question of vicarious liability applies with full force. However, this has to be ascertained cautiously without entering into detailed scrutiny and appreciation of merits of the case of the prosecution.
' For application of section 149, it is necessary:--
(i) That one should be a member of an unlawful assembly;
(ii) that in prosecution of common object of that assembly the offence should be committed by a member of an unlawful assembly; and
(iii) that the offence should be of such a nature that the members of the assembly knew that offence is likely to be committed in prosecution of their common object.
8. Keeping in view the statements of injured witnesses and the other eye-witnesses which are claimed by the prosecution to be the independent witnesses, under section 161 it transpires that initially the quarrel ensued between the parties by hurling stones on each other and by infliction of injuries through blunt weapons i,e, sticks. When the fight aggravated three accused persons namely Khadim Hussain, Altaf Hussain and Sabir Hussain with their fire-arms resorted to firing. As a result of firing of accused Altaf Hussain, with his kalashnikov, Nisar Hussain and Mst. Rubina Bibi were injured. Though the firing of Khadim Hussain and Sabir Hussain appellants-accused proved to be non-fatal and ineffective, however, they restored to firing with their fire-arms alongwith Altaf Hussain. The complainant and other eye-witnesses were injured by infliction 'of injuries caused by Shafqat Hussain, Sajjad Hussain and Nadeem son of Khadim Hussain and the other accused. This shows that at this stage of the bail it cannot be said with certainty that all the accused persons initiated the attack with a common object. The question of applicability of section 149 is left open to be determined by the trial Court after the conclusion of the trial.
9. Now we come to the merits of the case. We are prima facie of the opinion that the occurrence took place on the road side as alleged by the prosecution. There is overwhelming material on the record which affirms our aforesaid view but we have already observed that initially the fight started between the parties through hurling stones and inflicting injuries by sticks, kicks and fists but when the matter flared up then Khadim Hussain, Altaf Hussain and Sabir Hussain resorted to firing. This also lends support to the conclusion that at this stage it would not be desirable to strictly apply the provision of section 149 of the Penal Code. Shafqat Hussain, Nadeem and Sajjad Hussain and other accused are attributed to have caused injuries on the person of Sher Afzal complainant by their sticks. On examination of the injury sheet of Sher Afzal complainant and his medico-legal report three injuries are attributed to have been caused on his person out of them two are bruises. These injuries appear to be simple in nature. However, the doctor has not opined as to whether the injuries are grievous or simple in nature. Since it is alleged by the prosecution that these injuries on the person of complainant were caused by the accused with blunt weapons, therefore, at this stage it cannot be definitely said as to who out of seven accused persons inflicted these injuries on the complainant. Keeping in view the fact that accused Altaf Hussain and Sabir Hussain were also injured during the incident and the same has been admitted by the Investigating Agency in its report under section 173, Cr.P.C., and the role attributed to Shafqat Hussain, Nadeem and Sajjad Hussain, they become entitled to bail: Although the complainant as well as the injured and the other independent witnesses did not disclose the fact of accused Altaf Hussain and Sabir Hussain being injured in the same incident, the accused may take the advantage of their being injured during the incident by cross-examining the prosecution witnesses on the point as to how they were injured and by whom they were injured. Though the Investigation Agency has disbelieved the counter-version of the accused persons but the accused are at liberty to raise the counter-version during the trial and if it has some substance it is for the trial Court to reach to a definite conclusion as to whether the attack was initiated by the complainant party or the accused persons. At this stage it will amount to diving deep into the evidence which is not desirable and permissible under the law, while deciding a bail matter. So far as accused Sajjad Hussain is concerned, his bail was cancelled by the Shariat Court without any justifiable reason. As discussed earlier Shafqat Hussain, Nadeem and Sajjad Hussain cannot be conclusively dubbed with vicarious liability at the stage of bail. Moreover, no weapon of offence was recovered at the instance of Sajjad Hussain accused- appellant.
10. Therefore, by setting aside the impugned judgment of the Shariat Court we order the release of accused-appellant Shafqat Hussain, Nadeem and Sajjad Hussain on bail. It is, therefore, ordered that these accused-appellants shall be released on bail provided they furnish a bail bond in the sum of rupees two lacs each with one surety each of the like amount to the satisfaction of any Magistrate First Class, Muzaffarabd and if the needful is done they shall be released forthwith provided they are not wanted in any other case or in any other offence. Thus, the appeal filed by appellants Nos.4 to 6 stands accepted.
11. So far as the case of Altaf Hussain appellant is concerned, he is attributed a major role by whose firing the deceased was done to death and Mst. Rubina Bi was injured. This accused-appellant is not entitled to get his release on bail. Khadim Hussain and Sabir Hussain, though resorted to firing and their firing proved ineffective but by resorting to firing they knew it full well that their firing or the firing of accused Altaf Hussain could cause the death of deceased or any member of the complainant party. Thus, these accused are also not entitled to their release on bail at this stage.
However, they may renew their prayer for bail after recording of evidence of at least injured prosecution witnesses. The appeal, thus, filed by Khadim Hussain, Altaf Hussain and Sabir Hussain stands dismissed. The observations made in this judgment are purely for the purpose of bail and the same would not in any case adversely affect the case of the prosecution or that of the defence.