' MUHAMMAD YUNUS SURAKHVI, J.--- The above titled both the Criminal Appeals Nos. 26 and 28 of 2000 arise out of the single judgment passed by the Shariat Court on 11-9-2000, whereby in Criminal Appeal No, 26 of 2000 respondents Muhammad Naeem, Muhammad Waheed and Mehmood Hussain were released on bail, whereas in Criminal Appeal No, 28 of 2000 Muhammad Siddique and Maqbool Hussain, the appellants have been refused the concession of bail. Criminal Appeal No, 26 of 2000 has been filed by Muhammad Ajmal, complainant-appellant, for the cancellation of bail of Muhammad Naeem, Muhammad Waheed and Mehmood Hussain, whereas Criminal Appeal No, 28 of 2000 has been filed by Muhammad Siddique and Maqbool Hussain, appellants, for their release on bail. As both the appeals arise out of a common judgment of the Shariat Court, therefore, we dispose them of by this single judgment.
2. The necessary facts, giving rise to the present appeals are that a case under sections 341, 324, 147, 148, 149 and 337-A, A.P.C. Was registered against Muhammad Javed, Muhammad Naeem, Muhammad Waheed, Muhammad Siddique, Maqbool Hussain and Mehmood Hussain, Awan by castes, residents of Dhangri-Sarsawa, Tehsil Kotli, on a written report lodged by Muhammad Ajmal, complainant at Police Post Sarsawa at 5.10 p.m. On 1-1-2000. It was alleged in the F.I.R. That the complainant and his first cousin Muhammad Anayat were proceeding towards the house of Lal Muhammad to attend an offering. When at 4.45 p.m. On 1-1-2000 they reached near the house of Mian Ejaz on a thoroughfare accused Muhammad Javed, Muhammad Naeem, Muhammad Waheed, Muhammad Siddique and Mehmood Hussain were waylaid. As soon as they saw the complainant and Muhammad Anayat the accused persons launched an attack upon them.
Muhammad Javed, accused, inflicted a knife blow on the chest of Muhammad Anayat who fell down. Muhammad Naeem, accused fired a pistol shot which did not hit anybody. Maqbool Hussain inflicted an injury on the head of complainant with a stick while Muhammad Siddique accused inflicted a stick blow on his left arm. On the hue and cry made by the complainant, Muhammad Iqbal and Muhammad Zubair were attracted at the place of occurrence. Mehmood Hussain, accused, inflicted a stick blow on the head of Muhammad Iqbal, whereas Muhammad Waheed, accused caused a stick injury on the head of Muhammad Zubair. Meanwhile Rab Nawaz reached the place of occurrence who intervened and rescued the complainant and his other companion from the accused.
3. The motive behind the occurrence has been stated to be that on the day of occurrence, prior to the incident of murderous assault., an altercation had taken place between Javed, accused and Muhammad Iqbal. For the said reason the accused persons waylaid and launched a murderous assault upon complainant and Muhammad Anayat. After the occurrence Muhammad Anayat succumbed to the injuries. Thus, after the necessary investigation by the police a challan under sections 302, 324, 341, 337-A, 147, 148 and 149, A.P.C. Was presented before the District Criminal Court Kotli on 4-2-2000, wherein the accused are facing their trial.
4. Muhammad Siddique, accused in the first instance presented an application for his pre-arrest bail before the District Criminal Court Kotli which was declined vide its order, dated 19-1-2000.
Consequently Muhammad Siddique was arrested and after his arrest, he alongwith other accused persons except Muhammad Javed, the principal accused, moved application for their bail after arrest on 18-2-2000, before the District Criminal Court Kotli. The trial Court did not grant the concession of bail to the accused on the ground that previous finding of the said Court by refusing the pre-arrest bail of Muhammad Siddique was intact, therefore, in absence of fresh grounds bail could not be allowed to the accused. After the rejection of their bail by the Trial Court the accused moved for their release on bail to the Shariat Court which vide its order, dated 11-9-2000 granted bail to Muhammad Naeem, Muhammad Waheed and Mehmood Hussain, accused, while Muhammad Siddique and Maqbool Hussain were declined the concession of bail.
5. It was observed by the Shariat Court that the role attributed to Muhammad Naeem, Muhammad Waheed and Mehmood Hussain needs further probe and inquiry and the question of their vicarious liability is yet to be determined by the trial Court. So far as Muhammad Siddique and Maqbool Hussain are concerned, it was observed by the Shariat Court that Muhammad Siddique has been attributed having caused an injury on the left arm of the complainant and Maqbool Hussain was held responsible to inflict an injury upon the head of complainant.
6. In support of Appeal No, 26 of 2000, Ch. Muhammad Riaz Alam, the learned counsel for the appellant, vehemently contended that the Shariat Court fell in grave error by allowing the concession of bail to Muhammad Naeem, Muhammad Waheed and Mehmood Hussain as these accused-respondents are also connected with the commission of the offence alleged against them. The learned counsel contended that the accused are duly named in the F.I.R. And they have been attributed a specific role who actually participated in the commission of offence and all of them waylaid the deceased and his companion. These accused were, thus, vicariously liable with the principal accused, Muhammad Javed who inflicted a fatal blow upon the chest of deceased.
Therefore, these accused are equally liable for the commission of alleged offences attributed to them. The learned counsel relied upon reported cases titled Muhammad Bashir v. The State 1989 PCr.LJ 1636, Akbar and others v. State 1982 PCr.LJ 1232 and Muhammad Waheed v. State 1996 SCR 29.
7. In support of Appeal No, 28 of 2000 it was strenuously argued by Ch. Muhammad Azam Khan, the learned counsel for appellants Muhammad Siddique and Maqbool Hussain that the Shariat Court erroneously declined the concession of bail to the appellants as their role is similar to those, of Muhammad Naeem, Muhammad Waheed and Mehmood Hussain, who were released on bail by the Shariat Court. The learned counsel contended that appellants were meted out with a discriminatory treatment as the attribution against them is that one of them caused stick blow on the head of complainant, whereas the other inflicted injury on his arm. The similar role is attributed to Muhammad Waheed and Mehmood Hussain, who inflicted injuries on the head and arm of the prosecution witnesses but they were released on bail. Thus, keeping in view the rule of consistency and principle of parity, those accused who are attributed similar role and placed in a similar position, they are to be treated alike. Thus, the learned counsel contended that Muhammad Siddique and Maqbool Hussain should have also been released on bail. As regards the question of vicarious liability the learned counsel contended that the same cannot be minutely gone into at the stage of bail as the same is yet to be probed into and inquired into at the conclusion of the trial of the case against the accused persons. The allegation of waylaying by the accused, according to the learned counsel also seems to be doubtful as according to the case of prosecution, an altercation prior to the occurrence, took place between Muhammad Javed, accused and Muhammad Iqbal, P.W. If there has been any intention on the part of the accused to kill someone, that would have been Muhammad Iqbal and it was only he who would have been waylaid by the accused but he was attracted at the place of occurrence after the actual incident of murder. The learned counsel relied on reported cases titled Muhammad Khalil Khan v. The State 1996 SCR 3, Muhammad Sharif and another v. The State PLD 1987 SC (AJ&K) 90 and an unreported case of this Court titled Basharat Khan v. Gulfraz and others Criminal Appeal No, 1 of 1993, decided on 26-5- 1993.
8. Ch. Muhammad Mushtaq, the learned Additional Advocate-General, appearing on behalf of the State, fully supported the arguments advanced by Ch. Muhammad Riaz Alam, the learned counsel for the complainant.
9. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the accused-respondents Muhammad Naeem, Muhammad Waheed and Mehmood Hussain have been released on bail by the Shariat Court. Muhammad Naeem is attributed to have fired with his pistol but his fire proved ineffective. No empty was recovered from the place of occurrence.
Mehmood Hussain is accused of inflicting a simple injury on A the head of Muhammad Iqbal by a stick and according to the medical report a swelling has been found upon his head. Muhammad Waheed, accused is also attributed to have inflicted an injury with his stick upon the head of Muhammad Zubair. According to the medical report this injury is also simple In nature. The aforesaid three accused have been released on the ground that their case needs further inquiry and the question of their vicarious liability can more appropriately be gone into at the conclusion of the trial. So far as accused appellants Muhammad Siddique and Maqbool Hussain are concerned, their bail has been declined by the Shariat Court on the ground that Maqbool Hussain inflicted an injury upon the head of complainant, whereas Muhammad Siddique has caused an injury with a stick upon the left arm of the complainant. The Shariat Court has formed the opinion that the injuries inflicted by these accused find support from the medical evidence. These accused appellants are duly named in the F.I.R. And they having been involved in heinous offence, their case falls within the prohibitory clause of section 497(1), Cr.P.C. These accused, according to the Shariat Court, joined unlawful assembly by arming themselves with sticks and also waylaid and in pursuance of their common intention Muhammad Javed the principal accused stabbed the deceased, whereas Muhammad Siddique and Maqbool Hussain accused caused injuries to the complainant. We are of considered opinion that the role attributed to and appellants Muhammad Siddique and Maqbool Hussain is similar and identical to the role attributed to Muhammad Waheed and Mehmood Hussain. Therefore, the case of appellants Muhammad Siddique and Maqbool Hussain is at par with the case of Muhammad Waheed and Mehmood Hussain. Thus, following the rule of consistency the appellants Muhammad Siddique and Maqbool Hussain should not have been meted out a discriminatory treatment. Thus, they are also entitled to the concession of bail.
10. So far as the question of waylaying of accused is concerned, it may be stated that keeping in view the circumstances of the case, prior to the occurrence an altercation took place between Muhammad Javed, accused and Muhammad Iqbal which ultimately became the main cause of the incident of murder. Thus, the argument advanced by Ch. Muhammad Azam Khan, the learned counsel for appellants Muhammad Siddique and Maqbool Hussain has a substance that the question of waylaying the deceased and complainant needs further probe especially so when the case of prosecution is that Muhammad Iqbal, P.W. Reached the place of occurrence after the incident of murder and was attacked by Mehmood Hussain accused and Muhammad Waheed, accused inflicted injury on the person of Muhammad Zubair who reached on the scene of occurrence alongwith Muhammad Iqbal. It may also be stated 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 they participated in the commission of offence the question of vicarious liability applies with full force but the circumstances of each case have to be looked into. Prima facie it appears from the facts of the case that it cannot be said with certainty at this stage that all the accused initiated the attack with a common object and in furtherance of common object the deceased was killed particularly so when neither the respondents in Appeal No, 26 nor the appellants in Appeal No, 28 made any overt act towards the deceased. Therefore, in our view, the accused-respondents in Criminal Appeal No, 26 of 2000 and appellants in Criminal Appeal No, 28 of 2000 cannot be saddled with the vicarious liability and sharing the intention of the principal accused Muhammad Javed at this stage.
11. The authorities cited by the learned counsel for. The complainant as well as the accused- appellants need not be discussed in detail as each criminal case has to be decided in ' view of its peculiar facts and circumstances. The authority in one criminal case has hardly any bearing on the other criminal case.
12. In the light of what has been stated above, finding no force in the appeal filed by Muhammad Ajmal complainant-appellant, Criminal Appeal No,26 of 2000 stands dismissed as there seems to be no illegality in the order passed by the Shariat Court in releasing the accused-respondents Muhammad Naeem, Muhammad Waheed and Mehmood Hussain on bail. However, in case of Muhammad Siddique and Maqbool Hussain, the Shariat Court fell in error in refusing the concession of bail to them. Therefore, their Appeal No, 28 of 2000 stands accepted and the judgment passed by the Shariat Court is set aside to their extent. The accused appellants Muhammad Siddique and Maqbool Hussain shall be released on bail provided they furnish bail bonds in the sum of Rs, 5,00,000 consisting of two sureties with their personal bonds in the same amount to the satisfaction of any Magistrate 1st Class Mirpur/Kotli or Assistant Registrar of this Court, if they are not wanted in any other case or offence. If they do the needful they shall be released forthwith.