2007 P Cr (PLP)

SYED HUSSAIN MAZHAR KALEEM, J.

The above titled revision petitions have been directed against the order of Additional District Court of Criminal Jurisdiction Mirpur dated 4-1-2007, whereby the petitioners were refused bail.

2. Brief facts forming background of these revision petitions are that a ease under sections 302/324, 147, 148, 149, A.P.C. was registered against the petitioners Police Station, Dadyal on the complaint of Raja Shahzad Khan. It was reported that on 21-11-2005 at about 12-15, P.M. Sarfraz son of Shahnawaz, Pervez son of Raja Rajasab, Afraz son of Afsar Khan and the complainant were sitting in the courtyard of the residential room of P.C.O. of Raja Ghazanfar situated in Siakh near hospital. In the meantime Jahangir Akbar, Naseer Akbar, Asif and Tariq sons of Muhammad Akbar, Jan,Shah son of Asghar Ali Shah, Arshad son of Sohbat Ali and Kabir son of Sharif came there in the jeep of Jahangir Akbar. Jahangir, Naseer, Asif and Tariq were armed with kalashnikovs and rest with .12 bore guns. While stepping out of the jeep Jahangir raised Lalkara and fired a burst. One of the bullet hit Sarfraz Khan. The other accused persons also started firing. The fires hit at the hip and the legs of the deceased who succumbed to the injuries. Motive behind the occurrence was that accused persons asked the deceased for "Ghunda Tax". Prior to the occurrence at Bathar bend Jahangir accused stopped Sarfraz and Pervez and asked them for money but the deceased refused and they exchanged harsh words. Upon this Jahangir threatened them.

3. During investigation section 13/20/65, A.A. was added the accused petitioners were arrested by the police. They applied for bail before the trial Court and the same was refused through the impugned order. Hence, the above titled revision petitions.

4. Learned counsel for the petitioners argued that the accused petitioners were involved in a false case on account of enmity. The prosecution witnesses were closely related to each' other and the deceased. Their statements recorded under section 161, Cr.P.C. were full of contradictions. Jahangir Akbar, Naseer Akber, Asif and Tariq were real brothers and a story was concocted to involve them in a false case. According to the learned counsel Forensic Science Expert's report regarding kalashnikovs allegedly recovered at the instance of Naseer Akbar clearly indicates that it was not used for commission of the offence. As per prosecution case the deceased and the prosecution witnesses were sitting on a cot while they were fired upon in a reckless manner but surprisingly it was only the deceased who received injuries and non of the other witnesses was hit during the alleged heavy firing. Learned counsel contended that the place of 'occurrence was situated near a hospital and a tube-well but no independent witness was cited. It was pointed out that the case of Arshid and Kabir is distinguishable from that of the other accused persons. They were alleged for using .12 bore gun while the fatal injuries were caused by kalashnikovs. Site plan also contradicts the ocular version. Learned counsel submitted that the prosecution story being highly doubtful was not worth consideration. Material on record was not sufficient to connect the petitioners with the alleged offence. In light of the circumstances the case against them requires further probe, therefore, by accepting the revision petitions, the impugned order may be set aside and the accused petitioners be released on bail.

5. On the other hand it was argued that petitioners were nominated in the promptly lodged F.I.R. The occurrence was witnessed by Shahnawaz, Pervez and the complainant. The eye-witnesses described the role of each of the accused persons. Identification of the accused persons was also not in doubt, as the parties were known to each other. The jeep allegedly used for commission of offence was seized during the investigation. The accused petitioners were alleged for firing and causing injuries at the person of the deceased. The recovery of weapons at instance of the accused petitioners and crime-empties from the place of occurrence lends support to the ocular version. The petitioners and others were equally liable for commission of the offence and there was sufficient material on record to connect them, therefore, it cannot be said that the Court below has committed any error while refusing bail. The impugned order being correct and in accordance with law needs no interference, therefore, the revision petitions may be dismissed.

5. As both the revision petitions arise out of the same case, therefore, these shall be disposed off through this common order.

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

7. It may be stated here that while deciding a bail application any deeper appreciation or detailed scrutiny of the evidence is not permissible and tentative assessment of the material is required.

8. A careful consideration of the record shows that Jahangir accused was alleged for receiving "Ghunda Tax". At the time of occurrence he came at the place with petitioners and others on a jeep. He fired at the deceased which hit him at his hip. Naseer Akbar was armed with kalashnikov while Muhammad Kabir and Muhammad Arshid with .12 bore guns. They were also attributed firing at the deceased by the prosecution witnesses. Post-mortem report shows that bullet and pallet injuries were present at the person of the deceased. During investigation weapons of offence were recovered from the accused petitioners. It may be mentioned here that if it appears that several armed accused persons came to attack and participated in the occurrence the fact that death was caused by the fire made by one of them only would not entitle the others for grant of bail. It may be stated here that where a clear case for vicarious liability is made out the bail shall be refused to all the accused persons. 8-A. As said earlier the accused petitioners and others came at the place of occurrence and fired at the deceased was sufficient to connect them with the alleged offence, therefore the question that they did not cause the fatal injuries merits no consideration at this stage.

9. In light of the facts listed above, I am of view that the trial Court has not committed any error while refusing bail to the petitioners, therefore, the revision petitions being without any substance are hereby dismissed.

10. Before parting with the case I would like to mention that any expression of opinion is purely for the purpose of bail matter and the trial Court shall proceed uninfluenced by this order. H.B.T.16/Sh.C.(AJ&K) Revisions dismissed.