2006 PLP 3264 (YLR)

SYED HUSSAIN MAZHAR KALEEM, J

The above titled revision petitions are directed against the order of Additional District Court of Criminal Jurisdiction, Dhirkot, dated 26-1-2006, whereby the petitioners were refused bail.

2. Since both the revision petitions arise out of same order of the trial Court, therefore, these shall be disposed off through this common judgment.

3. Brief facts leading to the background of the revision petitions are that a case under sections 324/341 and 337/34, A.F.C. was registered against the petitioners and another at Police Station, Dhirkot on the complaint of Saleef Khan resident of. Sohawa Sharif. It was reported that on 24-10-2005 the complainant was coming back from Sari-Bandi to Sohawa Sharif on a jeep. Tasawar Ali Shah was driving whereas Toseef Khan, Tassadaq Khan, Mazhar Khan and Zarif Khan were sitting in the jeep. At about 9-30 p.m. they reached at the place of occurrence, Finaz Khan son of Fiaz Khan, Abdul Qadeer Khan son of Hassan Khan, Imran Khan son of Aftab Khan, Rahat son of Altaf Khan who were lying in way raised Lalkara and stopped the jeep. Finaz Khan and Imran Khan were armed with knives while Abdul Qadeer and Razaq with sticks. Finaz Khan gave a knife blow at the right side of the chest of Tassadaq Khan. Iinran Khan inflicted knife injury at the left back of Toseef Khan. Abdul Qadeer and Razaq were alleged for beating Mazhar Khan son of Akhlaq Khan. Munawar Khan son of Nazir Khan, Tasawar Hussain Shah and the complainant rescued the victim and witnessed the occurrence. It was further alleged that the accused committed the offence with help of Abdul Qadir Khan Motive behind the occurrence is an enmity upon cutting a tree by the accused persons. Later on Tassadaq Khan succumbed to the injury and section 302, A.P.C. was added.

4. After having been arrested the petitioners applied for bail but the same was refused through the impugned order. Hence these revision petitions.

5. The learned counsel for the petitioners stated at bar that the accused persons have been involved in a false case on account of enmity. The occurrence took place during dark hour of the night and identification of the accused petitioners was doubtful. According to the learned counsel the occurrence was not pre-mediated. No evidence regarding any conspiracy or common intention was brought on record. Injuries found at the person of Toseef Khan were simple in nature. He was examined by the doctor on 27-10-2005 at 5-15, hours. Duration of the injuries mentioned in the report was 5 to 6 hours whereas the occurrence took place on 26-10-2005 at 9-30 p.m. and in this view of the matter it cannot be said that he suffered injuries during the occurrence. The learned counsel further argued that Abdul Qadeer a student of 9th class was 13 years of age at the time of occurrence and he was entitled to bail on this ground as well. He submitted that the case against the accused petitioners was highly doubtful and there was no justification for the trial Court to, refuse bail, therefore, by accepting the revision petition they may be released on bail.

6. On the other hand, the learned counsel for the complainant argued that the prosecution has a strong case against the accused petitioners. They were identified by the eye-witnesses and the deceased during the occurrence. A specific role of causing injuries at the deceased and the eye-witnesses was ascribed to them. Weapons of offence were recovered at their instance. Strong evidence in shape of the statements of eye-witnesses, recoveries, medical reports etc., was present on record, Prima facie, they were connected with the offence and were not entitled to any concession under section 497, Cr.P.C., argued the learned counsel and submitted that the revision petitions may be dismissed.

7. The learned Advocate-General supported the arguments advanced by the learned counsel for the complainant.

8. I have heard the learned counsel for the parties and gone through the record of the case.

9. A perusal of the record shows that Finaz Khan accused is alleged for causing fatal injury at the person of the deceased. Weapon of offence was recovered at his instance. The post-mortem report supports the allegation against the accused petitioner and dying declaration also confirms the role he played in the occurrence. In my view a prima facie case is present against accused petitioner No.3 and he is not entitled to concession of bail, therefore, the impugned order to the extent of Finaz Khan accused being correct and in accordance with law needs no interference.

10. However, the case of other accused petitioners is distinguishable from the case of accused-petitioner mentioned above. It may be mentioned here that mere presence of an accused at the place of occurrence is not sufficient to constitute offence under section 34, A.P.C. Some substantial material to prove that he was intending to commit the alleged offence in furtherance of common object is required for the purpose. In the present case Rahat, Imran and Abdul Qadeer accused, petitioners have not been ascribed any overt act towards the deceased. A role of causing simple injuries1 at the person of P.Ws. was attributed to them. No evidence regarding any conspiracy or common intention was brought on record, therefore, the question weather they committed the offence in furtherance of common object or not requires further probe.

11. The upshot of the above discussion is that Rahat Imran and Abdul Qadeer are admitted to bail. They shall be released from custody provided they furnished bail bonds in sum of Rs.5,00,000 (five Lac) each with two sureties and personal bonds in the like amount to the satisfaction of any Magistrate Ist Class, Muzaffarabad/Dheerkot while the revision petition to the extent of Finaz Khan accused is dismissed. The revision petitions stands disposed of accordingly. H.B.T./15/SH.C Order accordingly.