P L D 1988 Shariat Court (AJ & K) 1 (PLP)

5. The, case of the prosecution is that there existed a dispute between Mehboob Akhtar, deceased and his brother Masud Akhtar on the one hand and Sharaf Din, accused on the other over their common path‑way. On 4‑9‑1986 at 1‑00 p.m., Patwari Halqa came on the spot at the instance of Mehboob Akhtar; deceased for carrying out the demarcation of disputed path‑way but the accused party objected to the demarcation which led altercation between Mehboob Akhtar, deceased and Sharaf Din, accused on which the 'Patwari' stopped process of demarcation. The deceased then alongwith 'Patwari' left for Dudyal on his motor‑cycle to drop the latter there and the accused party also left for their homes but while doing so extended threat chat they would teach a lesson to Mehboob Akhtar, deceased for his bringing 'Patwari' on spot for demarcation when he comes back from Dudyal after dropping the 'Patwari'. Masud Akhtar apprehending danger to the life of his brother, in view of the‑above threat, went to his house from where he took out his 12 bore gun and, as a precautionary measure, left for Sadiqabad with, a view to escorting his brother Mehboob Akhtar to his home. When Mehboob Akhtar, deceased reached Sadiqabad, Masud Akhtar, P.W. sat on the back seat of his motor‑cycle. When they reached near a pond in village Kathar, at about 3‑30 p. m. they saw Muhammad Hussain, Ghaus, Muhammad Shabbir, Merban, Muhammad Zaman, Usman and Banaris, accused sitting at some distance from the path‑way at a high position the sari accused out of whom Muhammad Hussain was armed with 12 bore gun while others were carrying 'Dandas' and sticks, on seeing them raised 'lalkara' that they (deceased and his brother) would not escape alive today on which the deceased stopped his motor‑cycle. Muhammad Hussain, accused‑appellant fired a shot with his gun on the neck of Mehboob Akhtar, deceased as a result of which he fell down, on the ground on which the said accused fired another shot on his back. Masud Akhtar, P.W. in his self‑defence and in order to scare away the accused‑petitioners, fired a gun‑shot toward accused which hit Muhammad Usman on which Shabbir, Ghaus, Mehrban, Muhammad Zaman and Banaris, accused‑petitioners ran toward Masud Akhtar and after over‑powering him, beat him with sticks and 'Dandas' and in the meantime other accused who are respondents in Appeal No. 22 of 1987 also reached there and hurled stones on the deceased and his brother Masud Akhtar injured person. Mehboob Akhtar, succumbed to his fire‑arm injuries on the same day in Mirpur Hospital.

6. I have heard the learned Counsel for the parties and have also gone through the record of the case including the police diaries. The learned Counsel for the appellants, in Appeal No: 20 of 1987 in support of his contention that the allegation against the appellants of their involvement in the murder of Mehboob Akhtar, deceased on account of their constructive liability requires further inquiry and as such they are entitled, as a right, to be released on bail, has advanced following arguments:‑ (a) That it is the case of the prosecution itself that the deceased had died due to the gun‑shot injuries caused to him by Muhammad. Hussain, accused and no overt act towards the deceased is attributed to any of the petitioners who are only alleged to have given beating to a witness namely Masud Akhtar; (b) That the case is one of the counter version according to which Masud Akhtar, P.W. after having armed himself with 12 bore‑gun had fired with it at Muhammad Usman, accused grievously injuring his abdomen when he was standing alongwith Muhammad Hussain, Banaris and Muhammad Ilyas, accused on the public place near the village pond and that the said version having been found true by the police after the investigation of the case registered by it on the report of Muhammad Usman, accused, the above‑named prosecution witness has been challaned in the Court of Law for making an attempt on the life of Muhammad Usman, accused and causing fire‑arm injuries to him; (c) That the eye‑witnesses in the case besides being chafe witnesses and non‑residents of the locality, their names are not mentioned in the F.I.R. and out of them one is close relative of the deceased who resides in New Mirpur Town; (d) That the F.I.R. has been lodged by the real paternal uncle of the deceased in which Muhammad Hussain, accused is alleged to have fired one gun‑shot at the neck of the deceased but during the investigation the imprisonment has been made and two gun‑shots have been attributed to the said accused to have been fired by him at the deceased; and (e) That there is no independent evidence of the accused having threatened the complainant party to teach a lesson to the deceased on his return from Dudyal where he had gone to drop 'Patwari' on his motor‑cycle. Reference to 1982 PCr.LJ 1000, 1978 P Cr. L J 875, P L D 1981 A J & K 114 and PLD 1986 Sh. C 3 has been made in support of the above contentions.

7. On the other hand, the bail to the accused person is vehemently opposed by the Counsel for the State and the complainant who contended that all the accused had formed unlawful assembly with the common object of killing the deceased and it was in furtherance of the above object and intention that one of them namely Muhammad Hussain had fired a fatal gun‑shot at the deceased while others had beaten Masud Akhtar, P.W. and as such they are vicariously liable for the murder of Mehboob Akhtar, deceased in which offence the bail is prohibited under law. It is further contended by them that the allegation of the prosecution that the accused were members of the unlawful assembly whose object was to put an end to the life of the deceased also finds support from the counter F.I.R. lodged by Muhammad Usman, accused inasmuch as the presence of some of the accused on the spot at the time of occurrence is admitted in it. It is also contended by the learned Counsel for the complainant that the counter‑version of the incident given by the defence is untrue which has been put forth to save the accused from the consequences of their criminal act and that it was after his brother had been fired at and injured that Masud Akhtar had fired at the accused in self‑defence with a view to saving his life and scaring away the accused. In support of his above contentions, he has referred to P L D 1987 S C (AJ&K) 29, P L D 1981 S C (AJ&K) 10, P L D 1967 S C 529, PLD 1967 S C 340 and 1968 S C M R 924.

8. I have given my due consideration to the above respective contentions of the learned Counsel for the parties in the light of the facts and circumstances of the case and the material on the record after which I am of the opinion that all the accused who had applied for their bail, deserved to be freed on bail and the trial Court has erred in refusing the said concession to the appellants in Appeal No. 20 of 1987 because there appears no reasonable ground for believing, them to be connected with the commission of the offence of murder by reason of their vicarious liability and further inquiry is needed to determine their such liability. My reasons for coming to the above conclusion are precisely, as under:‑

9. The principal accused in this case is Muhammad Hussain who is alleged to have caused the death of Mehboob Akhtar, deceased by firing gun‑shots at him and the only allegation against the other accused for their complicity in the said crime is that they were also seen sitting alongwith the afore‑named principal accused near the pond of the village when he fired fatal gun‑shots on the deceased. In view of the above allegation the accused except Muhammad Hussain can only be held constructively liable for the offence of murder if they are found to be the members of the unlawful assembly which had, as its common object, the killing of Mehboob Akhtar, deceased and it was in further once of the above object, that Muhammad Hussain, accused, had fired at the deceased and killed him but there exist following circumstances in this case on account of which it cannot be said that reasonable grounds exist for believing them to be the members of any such unlawful assembly and thus vicariously liable for the murder of Mehboob Akhtar, deceased:‑‑ (a) The accusation of the prosecution that all the accused had way‑laid the deceased at the time of occurrence, needs further inquiry in view of the nature of the evidence in support of it. Abdul Ghani, complainant who also claims to be the witness of the occurrence is a real paternal uncle of the deceased and also makes substantial improvements in his statement before the police on what he had alleged in the F.I.R., In the F.I.R, he does not name any other person as eye‑witness of the occurrence and has attributed only one gun‑shot fire on the deceased to Muhammad Hussain, accused whereas in his statement under section 161, Cr. P.C. he has mentioned two other persons also having seen the occurrence and has also alleged that Muhammad Hussain accused had fired two gun‑shots at the deceased. The other two eye‑witnesses namely Fazal Karim and Mohabat Khan are not at all mentioned as having witnessed the occurrence in the F.I.R. who are also chance witnesses and are not residents' of the locality. One of them is maternal uncle of the deceased who is resident of Sector F‑1, New Mirpur Town. (b) The place at which the petitioners‑accused are alleged to have assembled at the time of occurrence appears to be public place near the village pond, where their assembly cannot, be said to be a rare or uncommon thing as in such like place the gathering of the residents of the village abadi is a natural social phenomena of village society. According to entries in the police diaries, the houses of the accused are situated near the place of occurrence and even in the site plan, the house of Banaris accused is shown to be only 77 feet away from it. In view of the above, the accusation of the prosecution that the accused were sitting near the place of occurrence to carry out the common object of the unlawful assembly to kill the deceased requires further probe. (c) This is also a case of counter version in which Muhammad Usman, accused who has been bailed out' by the trial Court, had also lodged an F.I.R. on the same day soon after the occurrence alleging therein that Masud Akhtar injured prosecution witness who was accompanied by the deceased after having armed himself with 12 bore gun had fired with it on him and injured him on the abdomen when he was standing alongwith other three accused persons near the village pond. The police investigating agency after investigation of the above complaint has found the allegation made therein true and put ups the challan against the aforesaid prosecution witness under section 307, A.P.C. and under section 15 of the Islamic Penal Laws (Enforcement) Act, 1974 for causing fire arm injuries to the said accused. It needs hardly any mention that both the counter‑versions, one put forth by the prosecution in this case and the other by the defence, cannot be wholly true and either only one of them can be true or both false or partly true and the occurrences had taken place not in the manner as alleged by the prosecution in this case and by the defence in the counter case. Thus, it is still to be determined as to whether the accused party of Masud Akhtar, P.W. accompanied by the deceased had initiated the attack and was the aggressor. (d) There was no justification for the trial Court to have refused the concession of bail to the accused‑appellants on the ground of their being vicariously liable for the offence of murder when it had granted such a concession to Muhammad Usman co‑accused who is also alleged to be the member of unlawful assembly like the said appellants. Principle of equal treatment in matter of bail to all the persons accused of the commission of similar, offence in the case was fully applicable in the case of the appellants.

10. For the foregoing reasons, the implication of the appellants in the murder of Mehboob Akhtar, committed by the principal accused, Muhammad Hussain by reasons of their constructive liability for being member of the unlawful assembly is a matter which needs further enquiry, and as such they become, as a right, entitled to be released on bail till such enquiry in view of the provision of subsection (2) of section 497, Cr. P. C. Accordingly accepting the Appeal No.20 of 1987, the appellants therein are released on bail in the sum of rupees one lac each with one surety in the like amount each to the satisfaction, of any 1st Class Magistrate Mirpur. The appeal of the complainant against the order of the District Criminal Court, Mirpur, releasing the respondents therein on bail, stands dismissed. M.Y.H./101/H.A. Bail granted.