' MUHAMMAD YUNUS SURAKHVI, J.---This appeal has been directed against the judgment passed by the Shariat Court on 25-4-2001, whereby the bail granted to appellants Nos.1 to 3 by the District Criminal Court, Kotli was cancelled and the revision petition filed by appellant No,4 was dismissed.
2. The necessary facts, giving rise to the present appeal, are that complainant Manzoor Ahmed Khan alongwith his injured relatives Khan Muhammad Khan, Abdul Khaliq and Khurshid lodged a written report at Police Station Fatehpur, Thakyala, Kotli, at 11 O' Clock on 26-12-2000, alleging therein that they were flooring their house when at about 7-30 a.m. They heard the noise outside the house upon which complainant Manzoor Ahmed Khan, Khan Muhammad Khan, Abdul Khaliq and Khurshid proceeded towards the house of Asmatullah and saw that the accused Muhammad Bashir, Muhammad Zaman, Karamatullah Khan, Muhammad Asif and Muhammad Ashfaque were dragging Asmatullah towards the house of Sikandar Hayat, accused. The complainant and his companions shouted that Asmatullah be left alone. Upon this, accused Muhammad Bashir fired with his .12 bore gun which hit the legs of Khan Muhammad Khan, who was injured and fell down. In the meantime Sikandar Hayat attacked with a hatchet on the back side of Asmatullah which was penetrated into the flesh due to use of force. The complainant Manzoor Ahmed, Abdul Khaliq and Khurshid went to rescue Asmatullah from the accused. Karamatullah Khan and Muhammad Imtiaz accused, caught hold of Khurshid and accused Muhammad Zaman inflicted a dagger injury on the right side of abdomen of Khurshid. Accused Muhammad Ashfaque, Muhammad Khushhal, and Muhammad Sajjad caught hold of Abdul Khaliq and accused Muhammad Asif inflicted dagger blow on Abdul Khaliq in his abdomen, who also fell down. Khan Muhammad Khan and Khurshid were injured in the incident and were lying on the ground. Accused Muhammad Bashir, Muhammad Khushhal, Muhammad Sajjad and Muhammad Mashkoor snatched away Rs,20,000 from the pocket of Khan Muhammad Khan and a Rado watch from Khurshid valuing Rs,12,000. The occurrence was witnessed by Mehmood, Muhammad Aziz, Muhammad Ramzan, Muhammad Sharif and others. On this report a case under sections 324, 337, 147, 148 and 149, A.P.C. Read with section 14, E.H.A., was registered against the accused. The accused were apprehended by the police. They moved their bail application before the Tehsil Criminal Court, Fatehpur Thakyala and it allowed bail to accused Muhammad Bashir and refused the concession of bail to the other accused.
3. Being dissatisfied with the order of Tehsil Criminal Court, Fatehpur Thakyala, Muhammad Zaman, Sikandar and Muhammad Asif, accused, moved their bail application before the District Criminal Court, Kotli on 19-1-2001. The complainant also moved application for the cancellation of bail granted to Muhammad Bashir. The District Criminal Court, Kotli vide its consolidated order dated 28-2-2001 allowed the bail application of Muhammad Zaman and Muhammad Asif and disallowed to the extent of Sikandar Hayat. The District Criminal Court also dismissed the application filed by complainant for the cancellation of bail of Muhammad Bashir accused.
4. Feeling aggrieved by the order of District Criminal Court, Sikandar Hayat instituted a revision petition while complainant also moved a revision petition for the cancellation of bail allowed to the accused by the District Criminal Court. The Shariat Court vide its impugned order dated 25-4-2001 dismissed the revision petition filed by Sikandar Hayat and accepted the revision petition filed by the complainant and cancelled the bail of Muhammad Bashir, Muhammad Asif and Muhammad Zaman. It is the aforesaid order of the Shariat Court which is the subject of present appeal.
5. In support of appeal it was vehemently contended by Mr. Liaqat Ali Khan, the learned counsel for the appellants, that the Shariat Court committed an error by cancelling the bail of accused- appellants. The leanred counsel contended that from the facts and circumstances of the case, it transpires that the intention of accused was not to commit the murderous assault. According to him the role attributed to Muhammad Bashir, accused-appellant, is that he fired with his .12 bore gun which hit the legs of Khan Muhammad Khan and the injuries were simple in nature. The seat and nature of the injuries, according to the learned counsel, shows that the accused had no intention to kill Khan Muhammad Khan, the injured witness. Muhammad Zaman, accused, is attributed to have caused injury with his dagger on the abdomen of Khurshid, P.W. And the injury is grievous in nature. Sikandar Hayat, accused- appellant, is stated to have inflicted injury with his hatchet on the back side of Asmatullah and the hatchet penetrated in his body which was later on pulled out by the doctor. The accused Muhammad Asif is stated to have caused injury with his dagger on the abdomen of Abdul Khaliq who fell down. The learned counsel for the appellants thus, contended that since the accused-appellants are in the judicial lock-up and no recovery is wanted from them, therefore, no useful purpose will be served for their incarceration in the judicial lock-up. The learned counsel thus, prayed that the impugned judgment of the Shariat Court be set aside
6. On the other hand Mr. Yaqoob Mughal, Advocate and Kh. Attaullah, the learned Additional Advocate-General, controverted the arguments advanced by the learned counsel for the appellants. They contended that the Shariat Court committed no illegality in recalling the concession of bail granted to the accused-appellants as all of them were armed with deadly weapons and they inflicted injuries upon the complainant party in order to kill them and as such they were connected with the commission of offences alleged against them.
7. After hearing the Pespective contentions of the learned counsel for the parties and perusing the record, we are of the view that except Muhammad Asif the other accused-appellants Muhammad Bashir, Muhammad Zaman and Sikandar Hayat are prima facie connected with the commission of offences alleged as they have been attributed a definite role. The contention raised by the learned counsel for the appellants that Muhammad Bashir, accused, inflicted injuries with his .12 bore gun on the legs of Khan Muhammad Khan, therefore, his intention was not to commit the murder of Khan Muhammad Khan merits no consideration. This accused was armed with a .12 bore gun and he fired with his gun at Khan Muhammad Khan which incidentally hit his legs. At this stage it cannot be definitely ascertained that his intention was not to cause the death of Khan Muhammad Khan, P.W. It is also incorrect that his case does not far within the prohibitory clause of section 497, Cr.P.C. Because when the injury is caused the sentence provided under section 324 is not 10 years but life imprisonment. Similarly the other accused" Muhammad Zaman and Sikandar Hayat Inflicted dagger and hatchet injuries on the persons of Khurshid and Asmatullah P.Ws. The injuries caused to the witnesses are grievous in nature. The complainant as well as the injured prosecution witnesses fully support the version of the prosecution as mentioned in the F.I.R. And in their statements recorded under section 161, Cr.P.C.
8. However, the case of Muhammad Asif, accused-appellant, stands on a different footing than the other accused-appellants. The allegation against Muhammad Asif, accused appcllant No,2, is that he inflicted dagger injury on the abdomen of Abdul Khaliq, P.W., who tell down due to the said injury. This assertion of the prosecution, as entered in the F.I.R.. Is not supported by the medico- legal report .Of Abdul Khaliq who according to the doctor received injury with a blunt weapon and the same is simple in nature. Thus, the ocular version of the prosecution being in conflict with the medico-legal report of this aroused, his case requires further inquiry and is entitled to the concession of bail which was illegally recalled and disallowed by the Shariat Court.
9_ The learned counsel for respondents vehemently urged that all the accused are vicariously liable for causing grievous as well as simple injuries to the prosecution witnesses, therefore, all of them are equally liable for the commission of offences alleged. Suffice it to say that at this stage of bail the question of vicarious liability of all the accused cannot be determined with any degree of certitude or definiteness, therefore, we leave it to be determined by the trial Court at the conclusion of the trial.
10. In the light of what has been stated above, we partly accept the appeal and set aside the impugned judgment of the Shariat Court to the extent it relates to Muhammad Asif, accused- appellant No,2. This accused is entitled to the concession of bail as discussed in the previous part of this judgment. He shall be released on bail provided he furnishes a bail bond in the sum of Rs,1 lac alongwith his personal bond of the same amount to the satisfaction of any Magistrate 1st Class, Kotli. If the needful is done, he shall be released forthwith provided he is not wanted in any other case or offence. So far as the accused-appellants Muhammad Bashir, Muhammad Zaman and Sikandar Hayat arc concerned, their appeal stands dismissed. However, these accused after recording the statements of complainant and the injured witnesses by the trial Court may renew their prayer for bail .