' Since both the revision petitions arise out of the same incident and the judgment. These have been consolidated and will be disposed of by this single judgment.
2. The facts precisely stated are that the complainant lodged an F.I.R. On 12th February, 2001 at 7-50 a.m. At Police Station Khuiratta, District Kotli. It was alleged that the complainant and the accused- persons belong to the same village. There was a business dispute amongst his cousin, Muhammad Akram and Khushhal son of Sakhi Walayat. In this connection a meeting of Panchayat was called at 7-00 a.m. On 12th February, 2001, at Chowk Bhayal. When the complainant alongwith his brother Muhammad Hanif, Muhammad Saghir, Shafaat, Abdul Hamid, Abdul Karim, Muhammad Tariq and Muhammad Akram reached near the Chowk Bhayal, all the accused-persons vicariously armed with lethal weapons formed themselves into an unlawful assembly and launched an attack upon the complainant party with an intention to kill them. Matloob Hussain, accused who was armed with pistol shot a fire which hit on the chest of his brother Muhammad Hanif who fell down upon the earth. On this Nisar, accused, inflicted two injuries upon his forehead with butt of Kalashnikov. Ashiq, accused, pelted stones which hit upon the chin of Muhammad Hanif, whereas the accused, Sakhi Walayat and Maulvi Walayat inflicted the injuries upon the right leg and right arm of Muhammad Hanif with the sticks. When Shafaat came to his rescue accused, Kala gave a blow of rod upon the head of Shafaat, whereby Sakhi Walayat and Maulvi Walayat, accused-persons caused the injuries on the right hand, left hand and right arm of Shafaat with the sticks. Muhammad Bashir, accused, shot a fire with .12 bore gun which hit upon the abdomen of Shafaat who also fell down upon the earth. Shahpal and Javed, accused, gave blows of sticks upon the right arm, left arm, right hand, on back and on the right eye of Muhammad Saghir Khushhal, accused caused an injury with the butt of Kalashnikov upon the head of Muhammad Akram whereas Mehboob Khan, accused gave a blow of stick upon the backside of his head. Muhammad Israr and Adalat, accused-persons pelted the stones upon the right cheek and right shoulder of Muhammad Akram whereas Sakhi Walayat and Maulvi Walayat, accused-persons inflicted injuries upon the right wrist, right hand and right leg of Muhammad Akram. Muhammad Farooq and Muhammad Akhzar, accused had been firing shots with a .12 bore gun and a pistol. Because of the injuries, Muhammad Hanif died spontaneously at the place of occurrence. On this report a case under sections 302, 324, 147, 148, 149 and 337, A.P.C.
Was registered. After necessary investigation all the accused-persons were put on trial.
3. Muhammad Nisar, accused, presented a petition for pre-arrest bail before District Criminal Court, Kotli, which was allowed and later on confirmed by the trial Court vide its order, dated 7th July, 2001, whereas all other accused-persons filed the bail application after their arrest whereby the bail was allowed to Mahboob Khan, accused but declined to the extent of the other accused-persons.
Feeling aggrieved and dissatisfied by the aforesaid order, dated 17-7-2001, Muhammad Matloob Khan and others have filed a revision petition for grant of bail whereas the complainant has presented a revision petition for recalling the order of concession of bail to the extent of Muhammad Nisar and Mahboob Khan, accused-persons. Both the above titled revision petitions have been consolidated and shall be disposed of by this judgment.
4. Arguing on behalf of the accused-petitioner, Raja Bashir Ahmad Khan, Advocate, the learned counsel has submitted that Muhammad Nisar, accused has been attributed to inflict an injury with the butt of Kalashnikov upon the forehead of Muhammad Hanif, deceased, but according to the post-mortem report, the aforesaid injury is skin deep showing the skull healthy which falsifies the case of the prosecution. According to him, if an injury is caused by butt of a Kalashnikov, the nature of injury will be altogether different. Similarly, an abrasion on left side of forehead of the deceased has also been attributed to Muhammad Nisar, accused. He also argued that the perusal of column relating to information furnished by police occurring in the post-mortem report reveals that the deceased died because of a fight between two groups which proves the fact that it is yet to be determined as to which of the parties was aggressor and which was aggressed upon. The learned counsel has maintained that the Medical Officer has not recorded any injury caused by blunt weapon in his remarks in the post-mortem report, therefore, it is a matter of further probe and inquiry as to whether the death occurred due to aforesaid injuries or not. The learned counsel has further contended that the accused-petitioners have been falsely implicated in the case and in month of February the calling of Panchayat at 7-00 a.m. Is not possible which also adversely affects the case of the prosecution. He also argued that names of none of the notables of the village appear in the record who were allegedly called to participate in the Panchayat. The learned counsel has pressed into service the submission that Maulvi Walayat Khan, accused is 75 years old whereas Sakhi Walayat is 55 years old who also received two injuries on his scalp and index finger but these have not been explained by the prosecution which cast heavy doubt on the prosecution version. The learned counsel has pointed out that the witnesses of recovery belong to one tribe and no notable or respectable of the locality has been cited as a recovery witness. The learned counsel has vigorously argued that the site plan was prepared on 20th February, 2001, after 8 days of the occurrence but the perusal of recovery memo. Shows that an empty of .30 bore was recovered from Point No,3 on 12-2-2001. According to the learned counsel when the site plan was prepared on 20th February, 2001, how it was possible for the Investigating Officer to recover the empty of .30 bore from Point No,3, eight days before the preparation of site plan. Thus, the aforesaid recoveries are fake which make the prosecution story suspicious. The learned counsel has submitted that the present case is a case of fight between two groups and evidence of common intention is not available, therefore, it needs further probe and inquiry but the trial Court has not applied its judicial mind and did not appreciate the arguments of the learned counsel for the accused-petitioners in its true perspective and declined the bail to the accused-petitioners on flimsy grounds. However, the learned counsel has defended the impugned order to the extent of Muhammad Nisar and Mehboob Khan on all counts. In this context, he has argued that the trial Court has exercised its discretion in a proper and judicious manner to the extent of both the abovementioned accused- persons, who are already enlarged on bail. In support of his contentions he has referred to the following authorities:--
(i) 1994 SCR 136; (ii) 1995 SCR 104; 155; 237; (iii) 1996 PCr.LJ 207; 569 and 1999 M LD 441.
5. On the contrary, Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the complainant, has controverted the arguments raised by the learned counsel for the accused-petitioners. He has submitted that it is a daylight occurrence and is a clear case of an assault by forming an unlawful assembly in furtherance of common intention of the accused-petitioners by causing injuries and blows to the complainant party and Muhammad Hanif, deceased. He has argued that accused- persons and P.Ws. Know each other and no past enmity exists between the parties. The learned counsel has further contended that all accused-persons are not only nominated in the F.I.R. But a specific overact has also been attributed to them. The prosecution has cited three injured P.Ws.
And all of the injuries are on vital part of the body. The learned counsel has vigorously contended that according to the paras. 6 and 12 of revision petition the accused-petitioners have admitted their presence on the spot as well as their participation in the incident where Muhammad Hanif, deceased, received fatal injuries and other eye-witnesses were also assaulted and caused blows on their persons. According to him, the mere omission of Investigating Agency to recover the weapon of offence was not a valid ground to allow bail to them besides Muhammad Nisar, accused-respondent secured pre-arrest bail and after getting the concession of bail he did not join the Investigating Agency, therefore, the weapon of offence could not be recovered from him.
The learned counsel has maintained that the trial Court has allowed bail to accused Muhammad Nisar and Mehboob Khan on flimsy and conjectural grounds and could not take into consideration that the case of Muhammad Nisar pertains to an ad interim bail whereas the trial Court dealt with the case of pre-arrest bail and after arrest bail in an identical patron and did not bother to satisfy itself as to whether Muhammad Nisar was implicated in the case out of malice or fabrication. The learned counsel has also argued that the reference of Point No,3 pertains to the site plan prepared by the Investigating Officer and not by Patwari P.W., therefore, the recovery evidence could not be falsified on this account. The learned counsel has further submitted that 15 accused-persons in consequence of preconcert armed with lethal weapons launched an attack upon the complainant-party. Muhammad Hanif, the complainant was fired upon who also received injuries with sticks, stones and butt of Kalashnikovwhereas eyewitnesses were also severely injured while the complainant party was empty handed. The injuries on the person of the deceased and eyewitnesses have been corroborated by the post-mortem and the medico-legal reports. The prosecution witnesses have attributed all the abovementioned injuries in their statements recorded under section 161, Cr.P.C. Which corroborate the prosecution story. Finally, the learned counsel has submitted that exercise of discretion by the Court below to the extent of accused- petitioners is legal and cogent whereas the trial Court has exercised its discretion in an arbitrary and fanciful manner to the extent of accused-respondents Muhammad Nisar and Mehboob Khan while enlarging them on bail which certainly needs interference by this Court. The learned Counsel has cited PLD 1975 SC 351 in support of his arguments.
6. Sardar Muhammad Raziq Khan, Additional Advocate-General appearing on behalf of the State, has fully owned and supported the arguments raised by the learned counsel for the complainant.
7. I have considered the arguments addressed at the Bar, perused the record with care and the authorities cited by the learned counsel for the parties. The scheme of bail is laid down in sections 496, 497 and 498, Cr.P.C. Which have to be kept in view, while passing a bail order. The policy of law, in respect of bail to persons accused of non-bailable offence is envisaged under section 497, Cr.P.C. In offences punishable with death or life imprisonment. Where it appears that reasonable grounds exist for believing that the accused has committed an offence, bail cannot be allowed but where the material placed before the Court is insufficient to form an opinion about the commission of non-bailable offence, and there are sufficient grounds for further probe into the guilt, the accused shall be released on bail by virtue of section 497(2), Cr.P.C. After considering the nature and gravity of charge, the severity of the punishment which a conviction will entail, health or sex or age of an accused and the nature of evidence produced by the prosecution.
8. Following the abovementioned principle and after examining the material collected by the Investigating Agency, it appears that Muhammad Matloob fired upon Muhammad Hanif, deceased, by a pistol in consequence of which he died spontaneously. It is also the case of prosecution that Muhammad Bashir shot a fire upon Shafaat who received dangerous and grievous injuries. The abovementioned allegations, prima facie, find support from the medical evidence and evidence of recovery of lethal weapons at the instance of the accused-petitioners.
Therefore, 'Muhammad Matloob and Muhammad Bashir, accused-persons, prima facie, are connected with the offences punishable with extreme penalty. In this view of the matter, the trial Court has rightly declined to extend the concession of bail.
9. So far as the case, of Maulvi Walayat Khan and Sakhi Walayat is concerned, they have been scribed to cause blows of sticks upon the right leg and right arm of the deceased but the abovementioned injuries Nos.6, 7 and 8 have been recorded as abrasions in the post-mortem report. Therefore, it is yet to be determined as to whether these accusedpetitionets shared the common intention and they are vicariously liable for the death of Muhammad Hand, when according to the prosecution he had already fallen down upon the earth after hitting by a shot of fire by Muhammad Matloob and further more was allegedly injured by the butt of Kalashnikov by Muhammad Nisar, accused. The injuries on the person of Muhammad Akram (P.W.2) attributed to these accused-petitioners have also been reported as simple caused by a blunt weapon.
10. Khushhal, accused has been ascribed to strike with a butt of his Kalashnikov upon the head of Muhammad Akram but this injury also appears simple allegedly caused by a blunt weapon.
11. Shahpal Khan and Javed Khan, accused-persons have been allegedly attributed to cause blows of sticks jointly upon the right arm, right hand, left hand, on back and on right eye of Muhammad Bashir but except injuries of right forearm and left forearm all others have been reported as simple injuries.
12. Israr Khan, accused, alongwith Adalat (not before me) has allegedly pelted one stone each on right cheek and right shoulder of Muhammad Akram but both injuries have been shown as abrasions by the Medical Officer.
13. It will not be out of place to mention here that except Maulvi Walayat Khan and Sakhi Walayat, all the abovementioned accused-persons have not been attributed to launch an attack upon the deceased. They have also not been ascribed to cause an injury on his person nor the use of any deadly weapon. Furthermore, no fatal injury has been attributed to them on the vital part of the injured P.Ws. On this account, the case of these petitioners stands altogether on different footings from the case of Muhammad Matloob and Muhammad Bashir, accused-persons. In this manner, it is yet to be determined whether the accused launched an attack upon the complainant party by forming an unlawful assembly in furtherance of their common intention.
14. The record also bears this fact that 15 persons were nominated as accused whereas the complainant-party was seven in number. It has been observed by Dr. Muhammad Ishaq (P.W.16) in a column of post-mortem report relating to information furnished by police that "the deceased died at village Bhayal in a fight between two groups". The benefit of section 169, Cr.P.C. Has been extended to one of the accused, Muhammad Asghar. Sakhi Walayat one of the accused- petitioners was also shown injured during the incident but no explanation about his injury has been brought forward on the record. In such state of affairs, the case of each accused requires a careful scrutiny.
15. It is also important to observe that Maulvi Walayat Khan is about 75 years old and his case is also covered by first proviso to subsection (1) of section 497, Cr.P.C. I am cognizant of the fact that age per se cannot entitle an accused to bail and an old person cannot claim bail as a matter of right in non-bailable case but peculiar facts and attending circumstances of the instant case mentioned above, make out a case of bail, therefore, he would also be entitled to bail on the ground of old age. It, therefore, follows that the trial Court has failed to exercise its discretion in accordance with the settled principles of law governing the bail matters to the extent of the abovenoted accused-persons petitioners. 1973 PCr.LJ 397 and 1999 M LD 441.
16. It is settled position of law that the mere heinousness or gravity ID of offence itself is no ground for the refusal of bail. 1995 SCR 237.
17. I am not inclined to comment upon the arguments of the learned counsel for the accused- petitioners relating to the possibility of calling of meeting of Panchayat in the early hours of the morning, the fact of recovery witnesses belonging to one tribe or the possibility of recovery of empty from the Point No,3 of the site plan dated 12-2-2001, 8 days before the preparation of the site plan, dated 20-2-2001 or non-mentioning of common intention and vicarious liability of the accused- petitioners by the prosecution in report under section 173, Cr.P.C., because all these points touch the merit of the case which cannot be gone into at bail stage. At this stage, any expression of opinion by me on merits can prejudice the case of either party. It is cardinal principle of criminal jurisprudence that only provisional and objective assessment of ambient circumstances of case which do not trench upon case, is permissible for arriving at a decision that charge against accused is groundless or not. Deeper appreciation of evidence and close scrutiny is neither permissible nor desirable. 1995 SCR 104.
18. I do not find any substance in this argument of the learned counsel for the complainant that the paras. 6 and 12 of the present revision petition prove the presence of the accused-petitioners on the spot as well as their participation in the incident because the instant revision petition has to be examined as a whole.
19. Now, I advert to the case of Mehboob Khan and Muhammad Nisar. As far as the case of Mehboob Khan is concerned, he has been alleged to give a blow of stick on the occipital region of scalp of Muhammad Akram which has been reported as simple injury and swelling bruise.
Furthermore, the weapon of offence has not been recovered from him. Therefore, in the light of the above discussion, I do not find any taint in the exercise of discretion to his extent by the Court below.
20. The learned counsel laid much stress for the cancellation of bail of Muhammad Nisar, accused- petitioner. It was vehemently argued that the accused did not joint the investigation, therefore, the weapon of offence could not be recovered from him. It was also contended that the trial Court failed to appreciate, in distinct manner, the case of bail pre-arrest and after arrest and dealt with the case of the accused-respondents in identical patron and grounds. I have carefully examined the record and the material collected by the Investigating Agency against Muhammad Nisar.
Muhammad Nisar has taken the plea of alibi and has filed certain affidavits. The scrutiny of record reveals that he joined investigation and numerous affidavits were filed to prove his version. He has been alleged to inflict two injuries by butt of the Kalashnikov on the forehead of the deceased after his falling down upon the earth in consequence of pistol shot fired by Muhammad Matloob. In post-mortem report these injuries have been shown as laceration and abrasions but the scalp has been mentioned as healthy. Whereas weapon of offence Kalashnikov was not recovered from Muhammad Nisar. After careful consideration of the overall facts and circumstances of the case coupled with the version of the, accused, I hold that exercise of discretion by the Court below does not seem to be arbitrary or fanciful in favour of Muhammad Nisar, accused. No doubt, it was incumbent upon the Court to record that the complainant party implicated the accused with mala fide intention but the bail cannot be cancelled on this ground only because mistake of the Court should not prejudice an accused.
21. It will be useful to mention here that the complainant has, moved the revision petition for the cancellation of bail. It is always the arbitrariness or perversity in the exercise of discretion which calls for indulgence by this Court. As stated earlier, the exercise of discretion by the trial Court is neither arbitrary nor perverse, therefore, does not warrant any interference by this Court. 1996 PCr.LJ 569 (SC AJ&K).
22. Khair Muhammad alias Khairoo's case PLD 1975 SC 351, referred to by the learned counsel for the complainant, does not deal with the bail matter rather it is an appeal against the conviction order whereby the invocation of the principle of vicarious liability of the convict-appellant was discussed and instead of life imprisonment he was held responsible for causing hurt to the deceased on the neck punishable under section 332, P.P,C. With a maximum sentence of one year. Thus, it is distinguishable. Needless to say that an authority in a criminal case is relevant only to the facts of the case in which the same is given.
23. It is admitted principle of criminal law that the principle of unlawful assembly and sharing the common object is to be construed in the light of the facts and circumstances of each case. After considering the facts and overall circumstances of the instant case, it appears that the presence of the accused-petitioners except Muhammad Matloob and Muhammad Bashir and their participation in the offence, as alleged by the prosecution, requires further probe and inquiry. The question of sharing common intention and application of principle of vicarious liability shall be determined by the trial Court on the basis of the evidence to be adduced because it can unusually be inferred from motive, pre-concert and pre-arrangement which has to be gathered from the facts disclosed in evidence and surrounding circumstances.
For the foregoing discussion, I am inclined to partly accept the Revision Petition No,58 of 2001 and set aside the order of District Criminal Court, Kotli, dated 17-7-2001 to the extent of Maulvi Walayat Khan, Sakhi Walayat, Khushhal Khan, Shahpal Khan, Javed Khan and Israr Khan, accused- petitioners and they are admitted to bail on furnishing bail bonds in sum of Rs,3,00,000 (Rupees three lacs) each with one surety in the like amount to the satisfaction of any Magistrate 1st Class, Kotli. If the needful is done, the accused-petitioners shall be released on bail forthwith provided not required in any other case or offence. The instant revision petition stands dismissed to the extent of Muhammad Matloob and Muhammad Bashir, accused-petitioners. Consequently, the Revision Petition No,60 of 2001 filed by the complainant also fails which is hereby dismissed.