1992 P Cr (PLP)

Sardar Rehmatullah Khan for the Complainant. This reference has been made by the District Criminal Court, Kotli, on account of difference of opinion in the matter of bail.

2. Aurangzeb, Muhammad Ishaque and Barkat Hussain were put to trial on the charge of murder of Mst. Sahado Begum and infliction of injuries on the eye witnesses, under section 5, 15, Islamic Penal Laws Act, read with section 34, A.P.C. The alleged incident took place on September 24,1989, at 6-30 a.m. Abdul Aziz made a report of the incident in writing. It was alleged that Nazia daughter of the complainant and Musarrat daughter of Aurangzeb quarrelled with each other. Aurangzeb and Barkat Hussain were informed of the incident by Mst. Jamil Begum, wife of Aurangzeb, on the night of September 23, when they came home. On the morning of the day of incident, the complainant was not present at home. Aurangzeb, Muhammad Ishaque and Barkat Hussain came in front of the house of complainant party and abused them. Mst. Sahado Begum, wife of the complainant, came out of the house and arrived in the street. There was altercation between Mst. Sahado Begum and the assailants. Mistri Abdul Majid and Muhammad Hussain who were attracted by alarm, arrived on the scene and endeavoured to intervene in the quarrel when Aurangzeb fired twice with his .12 bore gun on Mst. Sahado Begum who died on the spot. Thereafter, the assailant trespassed in the premises of the complainant and assaulted Khadim Hussain Habib, Yasmin and Nazia, sons and daughters of the complainant. Aurangzeb fired on the aforesaid persons. Yasmin and Nazia received pellet injuries on the legs. Habib and Khadim Hussain ran away for their safety but they were chase by the assailants. Khadim Hussain also received pellet injuries on the left leg b the firing of Aurangzeb. Habib, his brother, received pellet injuries on his rigs thigh. Thereafter, the assailants disappeared from the scene. It was alleged tha the parties were inimical towards each other as the father of the complainant was killed by the assailants on September 24, 1979 and also injured Qrban Hussain brother, sometime in the past. They lived together. Aurangzeb died after moving the application for his release on bail. The learned Sessions Judge, a member of the District Criminal Court, felt, persuaded to allow bail to- Muhammad Ishaque and Barkat Hussain, on the ground of further inquiry and declined bail to Aurangzeb. The District Qazi, the other member of the Court, however, declined to concur with the finding of the learned Sessions Judge, as such reference was made to this Court for its disposal.

4. Mr. Muhammad Matloob Khan, the learned counsel for defence, contended that Muhammad Ishaque and Barkat Hussain are innocent. The prosecution ascribed no overt act to both of them. It was alleged that they raised lalkara after the murder of Mst. Sahado Begum. Thus, in case the allegation of prosecution is accepted as truthful, even then they are not ascribed any partisan role in the alleged murder. It was further contended that in view of the prosecution's version, the role ascribed to the assailants fell within the purview of further inquiry. Reference was made to authorities of this Court and the Supreme Court of Azad Jammu and Kashmir, in support of the aforesaid points. Sardar Rehmatullan Khan, the learned counsel for the complainant controverted the aforesaid points and emphasised that the presence of Muhammad Ishaque and Barkat Hussain in the incident of murder, was clearly described in the first information report. It was argued that both the accused helped Aurangzeb, the principal accused, in killing the deceased and infliction of injuries to the eye witnesses. The learned Additional Advocate-General supported the finding of the learned District Qazi.

5. During the trial, both the accused pleaded not guilty. The evidence of Mistri Abdul Majid, an independent eye-witness of the incident, has already been recorded. Reference confines to plea of bail of Muhammad Ishaque and Barkat Hussain.

6. It is evident from the record that Aurangzeb, the principal accused, murdered Mst. Sahado Begum and inflicted injuries on the eye-witnesses by firing with his .12 bore gun. The present accused were shown carrying stick and hatchet in their hands but these weapons were not used by them at any stage throughout the occurrence. The testimony of Mistri Abdul Majid, prima facie, reflects that Barkat Hussain carried a stick and Muhammad Ishaque a hatchet. They were seen standing together. The allegation of murder was ascribed to Aurangzeb. The present accused persons were not ascribed the charge of murder, incitement, abetment or help of any kind, in the alleged murder in furtherance of common object.

7. Aurangzeb and his mother were also injured in the incident. This factor was not brought to light by prosecution. Nevertheless, Mistri Abdul Majid admitted in his cross-examination that Aurangzeb and his mother also received injuries.

8. It is an accepted rule of grant or refusal of bail, to appreciate the ascribed role of an assailant in an incident, in the light of facts of a particular case. Once it is satisfied that the accusation ascribed to assailant is not grave and supported by evidence, in that case, the assailant is given the benefit of provision; of subsection (2) of section 497, Cr.P.C. on the ground of further inquiry.

9. In the present case, prima facie, only the presence of the assailants was shown at the place of incident. Their presence was not unnatural as they lived u the vicinity. Moreover, the family members of both the parties came out of then houses on the alarm of quarrel. Thus, unless an overt act ascribed to assailant: was supported by any tentative evidence, they could not be kept under detention; on the mere presence of their name in the first information report.

10. The other supporting factor to the plea of release of the accused on bail, is the suppression of injuries received by their mother and Aurangzeb, the principal accused, as described by Mistri Abdul Majid, P.W.

11. In view of the aforesaid position, the finding of the learned Sessions Judge is upheld. It is, therefore, ordered that the accused-petitioners shall be released provided they furnish bail bond in the sum of Rs.1,00,000 with their personal bond in the like amount each, to the satisfaction of any Magistrate Ist Class, Kotli. N.H.Q./128/Sh.CA. Bail allowed.