2008 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM, J.

The above titled revision petition is directed against the order of District Court of Criminal Jurisdiction, Sudhonoti, dated 13-9-2007 whereby the petitioners were refused bail.

2. Brief facts leading to the background of the revision petition are that a case under sections 302/34, 147, 148, 149, A.P.C. was registered against the petitioners and others at Police Station, Baloch on the complaint of Muhammad Suleman Khan. It was reported that on 31-7-2007 the complainant was present in his house. At about 7-15, p.m., he heard the sound of fires and arrived at the place of occurrence. There he came to know that his nephew Nadeem along with Gulfraz son of Muhammad Siddique was coming back to home and when reached at the place of occurrence, Muhammad Asghar and Muhammad Shabir sons of Muhammad Rafique armed with Mausers started firing at him. The fires hit Nadeem at his chest and other parts of the body and he succumbed to the injuries. Gulfraz made hue and cry, upon which Asad, Azhar, Nasir and Barkhurdar came there. In the meantime Kabir, Sikandar, Saleem, Raqeeb alias Tibbat, Arshad and Muhammad Rafique armed with .30 bore pistols and Kalashnikovs started firing at Barkhuddar and encircled him. The victim tried to escape but the accused persons chased and stopped him. Muhammad Rafique while firing raised Lalkara that he should not go alive and all the accused persons fired at Barkhuddar. The bullets hit at his back and other parts of the body. He succumbed to the injuries. The occurrence was stated to be witnessed by Gulfraz, Azhar, Nasir, Asad and other residents of the locality. Alleged motive was that prior to the occurrence Tibbat and Sikandar accused exchanged hot words with Nadeem.

3. After being apprehended the accused-petitioners applied for bail before District Court of Criminal Jurisdiction, Sudhonoti but the same was refused through the impugned orders. Hence this revision petition.

4. Learned counsel for the petitioners argued that an enmity was prevailing between the parties due to which a false case was registered and accused petitioners were roped in it. The trial court rejected the application on the ground of previous conduct of the accused petitioners but failed to appreciate that the cases referred by the prosecution, were still sub judice and they were not convicted for the alleged offence thus it was not a justifiable ground for refusing bail. The learned counsel, submitted that according to the report submitted under section 173, Cr.P.C. only Shabir and Asghar accused were alleged for firing at Barkhuddar. Muhammad Rafique was ascribed the role of raising Lalkara while Muhammad Saleem was alleged for being present at the place of occurrence armed with .222 bore gun. Muhammad Kabir, Sikandar, Raqeeb alias Tibbat and Muhammad Rashid were not ascribed any overt act towards the deceased. In fight of overall circumstances of the case, the presence of accused petitioners at the place of occurrence was doubtful and the question of their involvement in the occurrence was a matter of further inquiry, therefore, by accepting the revision petition they may be released on bail.

5. On the other hand it was argued that accused were nominated in promptly lodged F.I.R. Identification of the accused persons was not in doubt. Allegation of forming unlawful assembly and committing murder of two innocent, persons in furtherance of common intention was established. The occurrence was witnessed by Gulfraz, Azhar Hussain, Muhammad Nasir and Asad. In their statements recorded under section 161, Cr.P.C. they have ascribed them specific roles of waylaid, chasing and firing, resulting into the death of Nadeem and his father Barkhuddar Khan. Their presence at the place of occurrence was established and nothing requiring further probe was available on record, thus the impugned order being correct and in accordance with law, facts of the case and principles governing bail matter needs no interference, therefore, the revision petition may be dismissed.

6. The learned Addl. Advocate General supported the arguments advanced by the learned counsel for the complainant.

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

8. It may be mentioned here that while deciding a bail application of an accused alleged for committing offence under section 34 or 149, A.P.C, the paramount consideration should be that he was a member of unlawful assembly and the offence was committed in furtherance of common object. If there appears that it was in knowledge of such an accused that the offence shall be committed in furtherance of common object of the unlawful assembly then every member shall be responsible for the act committed by any one of them and if the offence committed falls within the prohibitory clause of section 497, Cr.P.C. the bail shall be refused to each of them.

9. In the present case the accused persons were alleged for firing and committing murder of Nadeem and his father Barkhuddar Khan. The allegation of causing fire arm injuries was supported by post-mortem reports. The contention of the learned counsel for the accused petitioners that during investigation only Shabir and Achar accused were found guilty of firing at the deceased persons merits no consideration as it was clear from the report submitted under section 173, Cr.P.C. that during the occurrence Muhammad Rafique raised Lalkara by telling others not to let Barkhuddar Khan go alive and Muhammad Saleem was alleged for being present at the place of occurrence armed with .222 bore gun. The presence of other accused persons at the place of occurrence armed with lethal weapons was not denied and it was further established by the eye-witnesses. The accused petitioners prima facie were alleged for waylaid, chasing and committing the offence of murder, thus being members of unlawful assembly they were not entitled to concession of bail. The trial Court gave very strong reason while passing the impugned order, therefore, the same needs no interference.

10. Upshot of the above discussion is that finding no force in this revision petition, it is hereby dismissed. N.H.Q./42/Sh.C.(AJ&K) Bail refused.