2014 PLP 1020 (YLR)

SYED HUSSAIN MAZHAR KALEEM, J.

Above titled revision petition has been directed against the order of Additional District Court of Criminal Jurisdiction, Mirpur dated 20-12-2012 whereby the petitioners were refused bail.

2. Brief facts forming background of the revision petition are that a case under sections 302, 324, 337, 147, 148 & 149, APC was registered at Police Station Mirpur on the complaint of Muhammad Asif. It was reported that on 8-4-2011, the complainant was present in his house, at about 5:30 p.m., after hearing noise he came out and saw Adil Aziz standing there. He told him that Parvez, Shakeel and Muhammad Khalil have beaten him. In the meantime Shahzad, Atif Aziz, Bahadur, Raja Mahmood, Amir Aziz, Muhammad Asif and Rahat also came there and asked the victim about the incident. After some time, Parvez, Shakeel, Javed, Khalil, Muzammal, Shahna, Nadeem, Imran, Haseeb, Faisal, Subhani and Shafique armed with lethal weapons reached at the spot. Raja Mahmood asked Shakeel as to why he beat Adil Aziz upon which, the accused fired at him with pistol and caused injury. Parvez accused targeted Shahzad with pistol. Khalil accused fired and injured Atif Aziz. Javed and Muzammal fired at Bahadur. Javed caused firearm injury to Mahmood at his foot while Shahna inflicted injury with the butt of pistol at his left eye. Muhammad Shafique caught hold of the complainant, Pervez and Shakeel fired at him but the bullets hit to Muhammad Shafique son of Muhammad Siddique. Nadeem accused gave blow with the butt of pistol at his mouth. All the accused persons were alleged for firing, causing injuries, raising lalkaras and threatening the complainant party. The occurrence was stated to be witnessed by the injured persons and other inhabitants of village. Later on Shahzad succumbed to the injuries.

3. After registration of the case, the accused-petitioners applied for bail before Additional District Court of Criminal Jurisdiction, Mirpur which was refused through the impugned order, hence the above titled revision petition.

4. Learned counsel for the accused-petitioners argued that the occurrence was not premeditated. The petitioners were roped in a false case on account of the enmity. The allegation against Javed Iqbal and Muhammad Shakeel was that they caused injuries to Bahadur and Muhammad Shafique, no overt act towards the deceased was attributed to them, thus, the allegation of committing offence in the prosecution of common object against them was of serious consideration while the punishment provided for the offence of causing injuries to the prosecution witnesses was not covered by prohibitory clause of section 497, Cr.P.C. The trial Court while refusing bail failed to appreciate the aforesaid facts therefore, by accepting the revision petition, the same may be granted.

5. On the other side, it was argued that the occurrence took place during broad-daylight. Identification of accused-petitioners was not in doubt. They were nominated in promptly lodged F.I.R. Names of the offenders and injured eye-witnesses were also mentioned therein. It was evident from the record that all the accused participated in firing and committed the offence in the prosecution of common object. The accused-petitioners being members of an unlawful assembly were equally responsible for committing the offence of murder, a prima facie case connecting them with the offence punishable with death existed on record thus, the trial Court did not commit any error while refusing bail therefore, the revision petition may be dismissed.

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

7. It may be mentioned here that while deciding the application under section 497, Cr.P.C., filed by an accused alleged for committing the offence of murder within the meaning of section 149, A.P.C., if there appears that he was a member of an unlawful assembly and the offence was committed in the prosecution of common object, the bail shall be refused. In such like circumstances even falling Short of ascribing any role to him by the prosecution shall not be sufficient to bring his case within the ambit of further inquiry. The claim of bail by the accused alleged for committing the offence under the aforesaid section on the ground of individual role played by him in the occurrence can only be taken into consideration where there appears that the allegation of forming unlawful assembly and committing the offence in the prosecution of common object was doubtful.

8. In the present case it was alleged that prior to the main occurrence Adil Aziz was beaten by Parvez, Shakeel and Muhammad Khalil. Later on when the victim was telling to the complainant, Shahzad, Atif Aziz, Bahadur, Raja Mahmood, Aamir Aziz, Muhammad Asif and Rahat about the incident, the accused-petitioners and others armed with lethal weapons came there. They started firing and caused injuries to Muhammad Asif, complainant, Mahmood and Muhammad Shafique. The allegation was supported by Medico-legal Reports pertaining to, the victims. Prima facie their presence at the spot at relevant time and participation in the occurrence was established, thus the inference can be drawn that they were members of the unlawful assembly which committed the offence in the prosecution of common object. Thus, it cannot be said that the Court below committed any error while refusing bail, therefore, the impugned order being correct and in accordance with law warrants no interference. Before parting with the order, I would, like to make it clear that any observation made by this Court at this stage be taken only as tentative. The trial Court shall be free to have an independent view of the case while deciding it on merits. The revision petition having no substance is hereby dismissed. HBT/9/Sh.C(AJ&K) Revision petition dismissed.