1996 P Cr (PLP)

Muhammad Akbar Khan Swati for Petitioner. Adam Khan Jadoon for the State. Date of hearing: 6th July, 1995. Vide this judgment I propose to dispose of Criminal Miscellaneous No.70 of 1995, whereby Muhammad Ishaq petitioner, has applied for his release on bail in case registered vide F.I.R. No.535, dated 9-11-1994 under section 302/324/34, P.P.C., Police Station Mansehra and Criminal Miscellaneous No.67 of 1995, whereby Chanzeb the complainant, has applied for cancellation of pre-arrest bail granted to Mir Alam respondent No.2 in the aforesaid case.

2. Chanzeb complainant, on 9-11-1994 at I1-30 a.m. lodged a report in Civil Hospital, Mansehra that on the preceding night Aslam and Arshad, in order to take forcible possession of land had thrown a trolly-lead stones on the land of Mahmood Khan, who came to Dhodial to complain that his brother Muhammad Ishaq etc. tried to forcibly take over the possession of the land. Consequently he alongwith his son Ayaz Hussain and Mahmood came to disputed land where Ishaq armed with .12 bore shotgun, Aslam and Arshad armed with .30 bore pistols and Asif armed with pistol were present. Muhammad Ishaq opened fire with his .12 bore shotgun with which Manzoor was hit on his face and neck. Aslam, Arshad and Asif also fired with their pistols on Mahmood who was hit and killed on the spot. The motive as disclosed was a dispute over the land.

3. Learned counsel for the petitioner in Criminal Miscellaneous No.70 of 1995 contended that the medical report does not support the ocular account therefore, it being a case of further enquiry, the petitioner is entitled to be released on bail. As far cancellation of bail of Mir Aslam is concerned, he submitted that accused-respondent has been allowed bail under first proviso to section 497, Cr.P.C. and there is no allegation of misuse or abuse of concession of bail, therefore, the pre-arrest bail granted to respondent Mir Aslam do not deserve any interference by this Court.

4. Learned counsel for the complainant vehemently opposed the bail application of Muhammad Ishaq and assailed the bail order of Mir Aslam on the ground that both of them have been directly charged for causing death of Mahmood and causing serious injuries to Manzoor. He submitted that if there is any variance in the eye-witnesses' account recorded by the police, the same would not adversely affect the case as, firstly perception differs from person to person and secondly the complainant in the state of agony may have not noted as to whose fire was hitting whom, and this matter has to be left to the trial Court to thrash out after recording evidence. The very gathering of the accused party in the disputed land with lethal weapons indicate their common intention, as they all criminally acted in concert pursuant to their pre-arranged plea. Since the parties are closely related and they have taken life of one person and injured the other for a small piece of land therefore, Muhammad Ishaq, does not deserve to be released on bail and the bail granted to Mir Aslam being against law laid down by the superior Courts is liable to cancellation.

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

6. The perusal of the record gives a very gloomy impression. Muhammad Ishaq, petitioner, real brother of Mahmood deceased, was previously named in F.I.R. No.336, dated 17-6-1994 under section 337(v), P.P.C. lodged by the deceased for the fracture of his finger wherein the motive given was the same dispute over a path. Thereafter a private complaint was filed by Mahmood deceased on 26-10-1994 under section 133, Cr.P.C. against Muhammad Ishaq for obstructing the street/pathway of the deceased, which was verified by the Municipal Engineer, as such S.H.O. concerned was directed by the Magistrate to remove the obstruction forthwith and Muhammad Ishaq was asked to appear before him on 27-10-1994 on which date he submitted an affidavit that he would not repeat this act again, consequently the complaint was consigned to record. After 12 days the present occurrence took place wherein Mahmood was done to death by his own brother and nephews while his son Manzoor was seriously injured by his uncle and cousins for the petty matter. The assemblage of the accused party with weapons sufficiently reflect their pre-arranged plan having common intention. As the petitioner alongwith his co-accused has actively participated in the commission of the crime, therefore, he besides his role is also vicariously liable for the offence. At this stage it is immaterial to A particularise as to whose fire hit whom and from what distance. This is the job of the trial Court to determine the specifications and to fix the responsibilities. There are reasonable grounds to believe that Muhammad Ishaq petitioner, is guilty of an offence punishable with death or imprisonment for life, as such his application is rejected.

7. Mir Aslam accused respondent was allowed pre-arrest bail simply on the ground of physical condition that he used to come to Court on crutches,' purportedly under first proviso of section 497, Cr.P.C. Mir Aslam accused is present in Court who looked to be quite healthy and firm Mere use of crutches by him which too, did not appear to be bona fide, do not render him entitled to the concession of pre-arrest bail. Moreover, he never produced any medical evidence in support of his alleged sickness or infirmity, and seemingly the same, if any is not such that it could not be treated in jail or under the supervision of jail authorities.

8. Since the order of pre-arrest bail is not within the law laid down by the superior Courts from time to time, therefore, it is recalled/cancelled. He is present in Court, taken into custody and sent to judicial lock-up for facing the trial. N.H.Q./1820/P Order accordingly.