2003 PLP 2978 (YLR)

The facts in brief are that Shairaz Ahmad Naz, petitioner/complainant; lodged an F.I.R. on 14‑7‑2002 at Police Station Trarkhal, District Sudhnoti alleging therein that Dr. Kamal and Muhammad Azam Khan contractor are real brothers. Mst. Shamim Akhtar daughter of Dr. Kamal Khan was married to Muhammad Hamid son of Azam Khan contractor about 21 years ago. Now, Muhammad Hamid has solemnized a second marriage and Shamim Akhtar is living separately for the last three years. A daughter of Muhammad Azam was married to Safeer Ahmad son of Wazir Muhammad Khan. Safeer Ahmad and Tahir Mehmood are real cousins of the complainant. Dr. Kamal Khan has a doubt in his mind that Safeer Alunad and Tahir Mehmood, complainant's cousin, are animus to him. The respectable of the locality wanted to negotiate a compromise between Muhammad Azam contractor and Dr. Kamal Khan and for this purpose the complainant was also present there. TV notables of the tribe had settled the dispute. It was further stated that Tahir Mehmood, Muhammad Nadeem, Muhammad Hafeez and Muhammad Naseem were standing near the Check Post meanwhile a Suzuki came from Puppe Nar, which stopped near the Check Post. Muhammad Shakeel, Iftikhar, Aftab and Ashiq, accused/persons, were sitting in the body of the Suzuki whereas Nazar Muhammad armed with pistol was sitting on the front seat. All of them stepped down and started hurling abuses. Nazar Muhammad raised a Lalkara and ordered the other accused/persons to do away with the life of Tahir Mehmood. In the meantime, all the accused/persons simultaneously launched an attack. Muhammad Shakeel was armed with Sota whereas Iftikhar, Aftab and Ashiq were armed with sticks. Muhammad Shakeel, accused, launched an attack upon Tahir Mehmood with an intention to kill him and gave a blow. of Sota on the left side of his head. The accused, Iftikhar also gave a blow of stick on the head of deceased, Tahir Mehmood. The deceased fell down on the ground. The accused, Ashiq and Aftab kicked the deceased. Thereafter all four accused/ persons Shakeel, Aftab, Iftikhar and Ashiq launched an attack upon Muhammad Nadeem with Sota and sticks. The occurrence was witnessed by Muhammad Nadeem, Muhammad Naeem, Muhammad Hafeez and others. The incident was done because of the conspiracy and instigation of Dr. Kamal Khan, Muhammad Zaheed and Mst. Shamim Akhtar. All the three accused/persons have been instigating the accused/persons to kill Tahir Mehmood. The conspiracy and instigation of murder was heard and seen by Muhammad Azam contractor on 12‑7‑2002 at 4‑00 p.m. in village Danna Puppe Nar. The injured Tahir Mehmood was carried to M.D.S: Trarkhal, who succumbed to the injuries. On this report, a case was registered. After usual investigation, all the, accused/persons were challaned in District Criminal Court, Pallandri/Sudhnoti in offences under sections 147, 148, 149, 109, 302, 324, 337‑A(i) and 337‑F(i), A.P.C., whereby the statement of Shairaz Ahmad Naz (P.W.1) has been completed and the trial is in progress. Mst. Shamim Akhtar, accused, moved a bail application after arrest on 22‑7‑2002, which was allowed by the District Criminal Court, Pallandri vide its order dated 8th August, 2002. Nazar Muhammad, accused, filed an application for pre‑arrest bail on. 24‑7‑2002 which was declined by the District Criminal Court, Pallandri vide its order dated 9‑8‑2002. After arrest, Nazar Muhammad alongwith Dr. Kamal, Muhammad Zaheed, Aftab Ahmad, Ashiq Hussain (Iftikhar Ahmad and Muhammad Shakeel not before me) filed a bail application before District Criminal Court, Pallandri on 15‑8‑2002. The trial Court extended the concession of bail to the extent of Dr. Kamal Khan, Muhammad Zaheed, Aftab Ahmad, Ashiq Hussain and Nazar Muhammad whereas the same was declined to the extent of Iftikhar Ahmad and Shakeel Ahmad vide its order dated 21‑9‑2002. Feeling aggrieved and dissatisfied, the complainant/petitioner has challenged both the orders dated 8‑8‑2002 and 21‑9‑2002 through the instant revision petitions. Assailing the impugned orders, Sardar Khan, Advocate, the learned counsel for the complainant/petitioner has contended that Dr. Kamal Khan, Muhammad Zaheed and Mst. Shamim Akhter have been instigating the other accused/persons to do away with the life of the deceased. Similarly, Nazar Muhammad, who was armed with a pistol played an active role while raising Lalkara and instigating the other accused/persons to kill the deceased whereas Aftab Ahmad and Ashiq Hussain, accused/persons have been kicking the deceased after his falling down on the ground. Aftab and Ashiq also launched an attack upon Muhammad Nadeem P.W. and gave him blows of sticks. According to the learned counsel, all the accused/persons mentioned above facilitated the murder who are vicariously liable for the commission of offence. The learned counsel has pointed out that according to the trial Court, the allegation of conspiracy and instigation against Dr. Kamal Khan and Muhammad Zaheed, accused/persons has been, prima facie, corroborated by the P.Ws., thus, they were not entitled to be released on bail. In this view of the matter, findings of the Court below are illegal and improper, which are not sustainable. The learned counsel has further maintained that according to the Court below the sufficient evidence about the instigation and conspiracy is available on the record thus, the question of principle of equality does not arise, therefore, the impugned order is erroneous. The learned counsel has vigorously argued that reasonable grounds exist to implicate all the accused/persons with the commission of crime but the trial Court ignored the principles enunciated by the superior Courts governing the bail matters and committed an illegality while recording the impugned orders. In this manner, the exercise of discretion by the Court below is arbitrary and capricious, therefore, the impugned orders are not maintainable. In support of the arguments reliance was placed on 1982 PCr.LJ 1232. Raja Mumtaz Hussain Kiani, the learned Additional A.‑G. appearing on behalf of the State has fully owned and supported the arguments raised by the learned counsel for the complainant/petitioner. Conversely, Sardar Abdul Hamid Khan, Advocate, the learned counsel for the accused/respondents, has submitted that, Mst. Shamim Akhtar is daughter and Muhammad Zaheed is son of Dr. Kamal Khan and the whole family of Dr. Kamal Khan has been involved in a concocted and fabricated case. The learned counsel has pointed out that para.2 of the revision petition has been wrongly described to the extent of Dr. Kamal Khan and Muhammad Zaheed because according to the F.I.R. Dr. Kamal and Muhammad Zaheed did not participate in the occurrence and they‑have been ascribed with the role of conspiracy and instigation to the other accused/persons. The learned counsel has further contended that the statement of Muhammad Azam contractor about the conspiracy has not been corroborated by any other witness whereas the statement of Muhammad Siddique, father of Muhammad Nadeem, (P.W.5) was recorded. after 24 days of the occurrence, thus, cannot be relied upon. The learned counsel has pressed into service the submission that the enmity between the parties is admitted, therefore, the prosecution has miserably failed to establish a, prima‑facie, case against the accused/ persons. The learned counsel has argued that Muhammad Riaz (P.W.16), who happens to be an impartial witness, has not supported the prosecution version in his statement recorded under section 164, Cr.P.C. that at the time of occurrence Nazar Muhammad was armed with pistol or other accused/persons were armed with Dandas and sticks. The learned counsel agitated that Muhammad Riaz (P.W.16) filed an affidavit wherein he solemnly affirmed that he did not depose in his statement recorded under section 164, Cr.P.C. that the accused/ persons Shakeel, Ashiq, Aftab, Iftikhar and Nazar Muhammad boarded in his Suzuki, which makes the case of prosecution doubtful. The learned counsel has argued that Nazar Muhammad is suffering from heart disease and even ineffective firing has not been attributed to him: He submitted that a rifle, has been recovered from the accused after 13 days of his arrest, therefore, the aforesaid recovery does not link the accused with the commission of offence. The learned counsel maintained that as far as the case of Ashiq and Aftab, accused/persons, is concerned, according to the post‑mortem report deceased received two injuries on his head, therefore, medical evidence does not support the oral version of the prosecution that Ashiq Hussain and Aftab Ahmad, accused/persons also kicked the deceased. According to him, Muhammad Nadeem (P.W.5) received three simple minor injuries caused by‑blunt weapon, according to which, the case of Muhammad Nadeem (P.W.5) does not attract any non‑bailable offence, therefore, the case of accused/persons needs further probe and inquiry and exercise of discretion by the Court below is legal and proper. On this account, the impugned orders may be maintained. In the light of the arguments addressed at the Bar, I have carefully perused the record. Firstly, I want to deal with the case of Dr. Kamal Khan, Muhammad Zaheed and Mst. Shamim Akhtar, who have been alleged to conspire the occurrence and instigate the, other accused/persons to kill the deceased. It transpires from the perusal of the record that the statements of Shairaz Ahmad Naz, complainant, Muhammad Azam contractor (P.W.7) and Muhammad Siddique (P.W.11) have been recorded under section 161, Cr.P.C. to prove the fact of conspiracy. In this respect, the complainant has simply deposed that the occurrence has been done on the behest and conspiracy of Dr. Kamal Khan, Zaheed and Mst. Shamim Akhtar, and Muhammad Azam heard and saw the accused/persons while conspiring and instigating the other accused/persons on 10th July, 2002. Muhammad Azam contractor has testified that two days before the occurrence all the three accused/persons were instigating Nazar Muhammad to murder Tahir Mehmood and Safeer Ahmad. The aforesaid statement was recorded after 4 days of the occurrence, whereas on 24‑7‑2002, after 10 days of the occurrence, Muhammad Siddique and Muhammad Nadeem, P.Ws. stated that they found Mst. Shamim Akhtar abusing Muhammad Azam contractor and Tahir Mehmood. She also warned them that she has purchased a rifle in lieu of Rs.3,500 and she will kill Muhammad Azam, Tahir Mehmood and Safeer Ahmad but the aforesaid statement, prima facie, does not find any corroboration from any other prosecution witness. No direct role has been attributed to the above‑mentioned accused/persons. Neither they were shown armed with any weapon of offence nor they have been attributed to cause any injury to the deceased. Now the question arises whether the accused/ persons have exhorted to other accused/ persons to kill the deceased, needs further inquiry which could be made at the stage of trial. Furthermore, Mst. Shamim Akhtar is a woman and apart from other reasons Mst. Shamim Akhtar being a woman is also entitled to be released on bail under proviso to subsection (1) of section 497, Cr.P.C. So far as the case of Nazar Muhammad is concerned, it is also yet to be ascertained as to whether he was armed with pistol or not. No overt act has been ascribed to accused and only allegation against him is that he raised a Lalkara, thus, it is a question of evidence whether the role attributed to Nazar Muhammad amounts to participation in the crime in the first degree. As far as the case of Aftab Ahmad and Ashiq Hussain is concerned, they have been saddled to kick the deceased but, prima facie, post‑mortem report does not support this allegation, whereas Muhammad Nadeem (P.W.5) received simple injuries on non‑vital part of body. Thus, their intention of murderous assault upon the deceased, prima facie, does not appear and they have been allegedly made responsible for having caused simple. injuries to Muhammad Nadeem P.W., therefore, their case is quite distinguishable from the case of other accused/persons. I do not feel proper at this stage to involve myself as to whether there existed any vicarious liability or not, therefore, the plea of vicarious liability will be examined during the trial. The perusal of the F.I.R., the statements of the P.Ws. recorded under section 161, Cr.P.C. and material placed on the record shows that the involvement of the accused/persons in the offence, prima facie, is doubtful and the case needs further inquiry, therefore, the accused/ respondents are entitled to bail under section 497(2), Cr.P.C. In this manner, the trial Court has exercised its discretion in a proper and legal manner and it does not smack of any perversity or arbitrariness, which is necessary ingredient for recalling the concession of bail. The case‑law cited by the learned counsel for the complainant does not need any detailed discussion because of the distinguishable facts. It is celebrated principle of criminal jurisprudence that an authority in a criminal case is relevant only to the facts of the case in which the same is given. For the reasons listed above, I see no force in both the revision petitions, which are hereby dismissed. A copy of the order shall be annexed with other file. Revision dismissed. H.B.T./52/Sh.C(AJ&K)