1984 P Cr (PLP)

S. 497-Penal Code (XLV of 1860), Ss. 302/34 & 341-Azad Jammu & Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S. 5-Bail-No actual part in commission of offence attributed to accused except that of holding of pistol snatched from deceased and threatened one eye-witness not to come to rescue of deceased

Responsibility of common intention cannot be held at this stage Accused, held, rightly granted bail in circumstances of case. M. Y. Surakhvi and M. S. Tariq for Petitioners. Rafique Mahmood Khan; Addl. A-G. for the State. Dates of institution: 6th and 10th February, 1983. This order will cover both the above petitions as they arise out of the same order of the District Criminal Court, Mirpur, dated 22nd January, 1983, made by it in the bail application. The above bail application has been moved on behalf of Zafar lqbal, Mazhar Hussain arid Muhammad Hussain, petitioners who are facing trial in the District Criminal Court, Mirpur alongwith Muhammad Ramzan, respondent in the above revision petition, under sections 302/34,341, A. P. C. read with section 5, Islamic Penal Laws Act and section 17 (3), E. H. O. The brief facts forming background to the filing of the above peti tions are that Ghulam Rasool deceased who was employed as a Driver in the United Bank Limited. Mirpur, was returning from his home situate in village Gurah Kheran in Bhring. 'Tehsil Bhimber, after spending Eid holidays, to join his duty at Mirpur on 2nd October 1982 at 5-30 a m. and he had hardly covered 3-4 furlongs when the petitioners and respondent, Muhammad Ramzan who were armed with hatchets, lathis and gainti, all of a sudden obstructed his way and mounted assault on him. Muhammad Hussain, petitioner caught hold of the deceased by waist while Mazhar Hussain and War Iqbal, petitioners inflicted injuries on his person with gainti and lathi, respectively whereas Muhammad Ramzan, respondent in the above revision peti tion, brandishing the revolver in his hand, threatened one of the eye witnesses of the occurrence of dire consequences in case he attempted to rescue the deceased and also gave him lath/ blows while he had fallen on the ground on receipt of injuries at the hands of the other accused-petitioners. All the accused made good their escape from the scene of occurrence on- the arrival of the witnesses. The injured person was removed to Bhimber Hospital where his state ment regarding the incident was recorded by the Sub-Inspector Police Station. Bhimber and a case under sections 307, A. P. C. and 15/15, Islamic Penal Laws Act, was registered. The injured person while being shifted to hospital at Mirpur succumbed to his injuries in the way. The Police after investigating the case, put up the challan against the petitioners and Muhammad Ramzan, respondent for the aforesaid offences in the District Criminal Court, Mirpur where bail application on behalf of all the accused in the case was moved which was only accepted to the extent of Muhammad Ramzan, respondent while bail was refused to others. Hence the present bail application and the revision petition for cancellation of bail granted to the respondent therein. After giving my due consideration to the arguments addressed at the bar by the learned Counsel for the parties and. taking into, consideration the facts and circumstances of the case, I am of the opinion that out of the petitioners, only War Iqbal, petitioner is entitled to', be released on bail pending the decision of the case. At the time of commission of the offence, he was admittedly a minor of the age of 14 years and 10 days and, as such, his case falls within the ambit of first proviso to subsection (1) of section 497, Cr. P. C. which fact removes embargo placed on the grant of bail to him by reasons of his having been accused of an offence punishable with death or transporation for life and entitles him to be freed on bail if the other merits of the case so require. Now, coming to the merits of the case, it may be stated that he is alleged to be armed with a hatchet at the time of commission of offence with which he struck blows to the deceased but, according to the post-mortem report, none of the injuries found on the person of the deceased has been caused with sharp-edged weapon which mean that at least he had not used the sharp-edged side of the hatchet in causing the injuries to the deceased. The death of the deceased has resulted due to haemorrhage caused by injury No. 13 inflicted by a pointed weapon which, in this case, can possibly be a Gainti, being carried by Mazhar Hussain, petitioner. Thus, the fatal blow is attributed to have been caused by Mazhar Hussain, petitioner. The common intention which Zafar lqbal, petitioner shared with the other accused in causing the injuries with hatchet to the deceased is a matter which is still to be ascertained by the trial Court on the basis of evidence to be recorded by it in the case. In view of the abovementioned circumstances and the petitioner under consideration being minor at the time of commission of offence, he deserves to be freed on bail pending the decision W v the case. As regard Mazhar Hussain and Muhammad Hussain petitioners in bail application, I am of the firm view that in the circumstances of the case, they should not be allowed the concession of bail at this stage. The injury No. 13 mentioned in the post-mortem report which became the cause of the death of the deceased, is alleged to have been caused by Mazhar Hussain, petitioner inasmuch as he was the only person who is alleged to have inflicted injuries on the person of the deceased with a pointed weapon like gainti. So, he is, prima facie directly respon sible for the death of the deceased. The other petitioner Muhammad Hussain is alleged to have caught' hold of the deceased by waist when the other accused in the case were causing injuries to him. Not only that, it is also the allegation against him that he beat the deceased with lathi when he bad fallen on the ground on receiving injuries at the hands of the other accused. Therefore, prima fecie, he appears to have facilitated the commission of offence of murder. So far as respondent, Muhammad Ramzan, in revision petition is concerned, I think he has rightly been let out on bail by the trial Court because no actual part in the commission of offence is attributed to him except that he had held the pistol snatched from the deceased, in his hand and threatened one of the eye-witnesses commanded him not to come to the rescue of the deceased thus at this stage, he cannot be held respon sible of having the common intention with the other co-accused to put the deceased to death. The net result of the above discussion is that the bail application of Zafar Iqbal petitioner is accepted while the same is refused to the other petitioners anal the revision petition against Muhammad Ramzan, respondent stands rejected. Therefore, Zafar lqbal petitioner shall be released forthwith from the custody provided he furnishes bail bond in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of any Magistrate Ist Class, Mirpur. M. A. K. Order accordingly