1998 PLP 1347 (MLD)

SARDAR SAID MUHAMMAD KHAN, C J.

This appeal has been directed against the order of the Shariat Court dated 22-2-1997, whereby the respondents Nos. l to 9 were allowed bail in a case under sections 302, 324, 147, 148, 149 and 506, A.P.C.

2. The brief facts of the case are that a case was registered against the respondents, Sarfraz and others, under sections 302, 324, 147, 148, 149 and 506, A.P.C., on the F.I.R. that Muhammad Rafique and others had formed an Organization known as 'Al-Wafa' Young Union so as to restrain the complainant patty from playing cricket in the village graveyard. On 31-9-1996, at about 10.30 a.m., Wajid, Mahfooz Sultan, Tassaduq and Riaz Hussain Shah were playing cricket in the graveyard when Muhammad Rafique and others, accused -respondents, came there and forbade them from playing cricket in the graveyard. Upon this, Wajid and others insisted that the graveyard was joint property and nobody could stop them from playing cricket. On this, four accused persons went away and came armed alongwith other respondents herein; Muhammad Rafique is alleged to have been armed with a Klashnikov, Asad Mahmood with a pistol, Qadeer with a revolver and Sarfraz with 12-bore gun while some others were armed with sticks. Mst. Inayat Bibi, wife of Mir Dad, raised 'lalkara' on which the accused-respondents opened fire. Muhammad Rafique fired with Klashnikov at Wajid which caused his death. The other accused persons are alleged to have given beating to Wajid and other members of complainant party with fists and kicks.

3. It has been contended by Ch. Muhammad Azam Khan, Advocate, the learned counsel for the appellant, that this was a case of vicarious liability and each of the members of the unlawful assembly is liable for the act of the other member. The learned counsel has contended that the Shariat Court has committed an error in allowing bail, especially so when Asad Mahmood, Qadeer and Sarfraz were also armed with lethal weapons. He has further maintained that according to the report of the Arms Expert, three empties whioli were taken into possession from the spot were found to have been fired from the revolver recovered from Qadeer, accused-respondent; similarly, the pistol recovered from Asad Mahmood had five live cartridges in its chambers The learned counsel maintained that the fact that Mahfooz Sultan, a witness for the prosecution, also sustained three injuries lends support to the prosecution version that he was present at the spot and his statement having been corroborated by other eye witnesses clearly implicates the respondents in the commission of offences alleged to have been committed by them. The learned counsel for the appellant has relied upon the cases reported as Muhammad Hanif v. The State (PLD 1989 SC (AJ&K) 13), Mir Zaman v. The State (1994 SCR 11) and Mst. Barkat.Bibi v. Gulzar (1979 SCMR 65).

4. Ch. Muhammad Mushtaq, Additional Advocate-General, supported the contentions of the learned counsel for the appellant that the accused-respondents should not have been allowed bail in the circumstances of the case.

5. Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the accused-respondents, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that fatal injury which resulted in the death of Wajid is attributed to Muhammad Rafique, accused, whose case is not before this Court and he has not been allowed bail. The learned counsel has argued that the name of Muhammad Rafique, the principal accused, has been incorrectly recorded in the line of the respondents as is evident from the application submitted by the counsel for the appellant for the deletion of his name. The learned counsel has further argued that in view of the fact that in the F.I.R. which was lodged by the complainant in presence of at least three other members from the prosecution side, no allegation has been made that Sarfraz, Qadeer and Asad Mahmood indulged in any firing with the arms which are alleged to have been recovered from them. The learned counsel has further argued that even according to the prosecution case .three persons from the accused party were found injured but there is no explanation whatsoever either in the F.I.R. or in the statements of the prosecution witnesses recorded under section 161, Cr.P.C., as to how they sustained the said injuries. Thus, according to the learned counsel for the respondents, the manner in which the incident took place has been suppressed by the prosecution and, thus, the whole prosecution story is doubtful. The learned counsel has also referred to the site plan to substantiate his contention that in fact the incident had not taken place in the graveyard but at the spot which was out of the boundaries of the graveyard. The learned counsel has also cited some authorities in support of his contention that the mere fact that a person has been charged with the vicarious liability is not sufficient to refuse him bail if the circumstances on the record render the part attributed to him as a member of the unlawful assembly as doubtful.

6. We have given due consideration to the arguments raised at the Bar. It may be stated at the outset that the name of Muhammad Rafique, accused, who fired shot at Wajid and caused his death is included in the line of respondents by oversight. Therefore, his name shall be deleted from the line of the respondents. As has already been indicated above, he has not been allowed bail in this case.

7. So far as the other accused-respondents are concerned, out of them Sarfraz, Qadeer and Asad Mahmood are alleged to have been armed with fire arms but all the same it has not been alleged in the F.I.R. that they fired during the incident at any of the members of the complainant party or in the air. The allegation of the prosecution that Wajid was also beaten with fists and kicks after he had received injury at the hand of Muhammad Rafique also falls within the ambit of 'further inquiry', because according to the medical certificate no other injury was found on the person of Wajid, except that of fire-arm. It may be pointed out that even the trial Court has mentioned in its order that bail matter of the accused-respondents may be considered after recording the statements of some of the prosecution witnesses. Thus, in view of the circumstances of the case indicated above, we are of the view that it is not a fit case in which discretion exercised by the Shariat Court in allowing bail to the respondents, Sarfraz and others should be interfered with. Hence finding no force in this appeal, it is hereby dismissed. H.B.T./263/SC(AJ&K) Appeal dismissed.