1993 P Cr (PLP)

Ch. Lal Hussain, Addl. A.‑G. for the State. Date of institution : 7th August, 1982. This application has been filed on behalf of the petitioner with the prayer that they be released on bail in a case pending in the District Criminal Court, Mirpur, against them, under sections 5 and 14/15, Islamic Penal Law Act read with sections 302/307, 148/149, A. P. C. The brief facts leading to the filing of the present application are that Said Muhammad Khan, the complainant, got his statement recorded on 6th September, 1981 at Police Station, Bhimber in which it was alleged that at about 8‑30 a. m. he alongwith his two sons, Aurangzeb and Purvez Akhtar, was sitting .in a hotel of one Muhammad Zaman near Toll Post, Bhimber. The petitioners alongwith Muhammad Rashid, Ali Asghar, Rafique, Muhammad Nawaz, Nasim and four other persons from Pakistan started firing at them with fire‑arm from outside of the hotel which resulted in the death of Purvez Akhtar on the spot by a gunshot fired by Javed Aslam accused‑petitioner with a 12 bore gun and grievous injuries to Aurangzeb and Abdul Rauf. It was further alleged that Muhammad Aslam and Sub: Mumtaz Khan and his son, Muhammad Akram, were instigating the aforesaid accused to kill the complainant and his sons. In the statement, the motive for crime was alleged to be an incident of fight having taken place between the complain ant and aforesaid Muhammad Aslam, in the year 1977 in which Muhammad Aslam, allegedly, lost his eyes at the hand of the complainant and it was with a view to taking revenge of the above incident that Muhammad Aslam has brought his relatives and. few other bad characters from Pakistan who committed the of aforesaid offences. On this statement, a case under sections 302/307 and 148/149, A. P. C. read with sections 5, 14/15. Islamic Penal Laws Act, was registered at Police Station, Bhimber on the same day and after investigation, the challan was submitted to the District Criminal Court, Mirpur against the petitioner and others. The petitioners' bail application in the trial Court having been rejected, they have now come to this Court for grant of bail to them. The learned Counsel for the petitioners, in support of this application, has urged the following grounds.‑ (1) That it is a case of further inquiry regarding the guilt of the accused‑petitioners because, firstly, the F.I.R. itself has been found doubtful by the investigating agency inasmuch as five accused have been found innocent and left out and secondly, there was exchange of firing between the complainant party and the accused in the case, as is evident from the statements of three witnesses, recorded under section 161, Cr. P. C. in which they have deposed that Aurangzeb, injured person, had also resorted to firing. (2) That Javed Aslam, petitioner, being below the age of 16 years at the time of occurrence, is entitled to the concession of bail under the proviso to section 497 (i), Cr. P.C. (3) That no specific injury is attributed to have been caused by Bashir Ahmed, petitioner, to the deceased or injured persons. The learned Counsel for the State has vehemently opposed this application and contended that the petitioners are accused of committing heinous offences of murdering one person and causing grievous injuries to two other persons by fire‑arms shots and, as such, they are disentitled to the concession of bail in view of the prohibitive clause of section 497, Cr. P. C. After giving my due consideration to the arguments addressed at the bar and going through the record of the case including the police diaries, I am of the opinion that in the facts and circumstances of the case, the petitioners do not deserve to be enlarged on bail. From the material on the record, it cannot be said that no reasonable ground exists to connect the petitioners with the crime with which they are charged by the Prosecu tion. 4 The offences of which they are accused, are punishable with death or transportation for life and, as such, their case is covered by that provision of law in matter of bail which debars an accused from the grant of bail. The accusation against the petitioners is that they alongwith some other persons appeared on the spot all of a sudden. and without any sort of provocation on the part of the complainant and his companions, indiscriminately opened the fire on them while they were sitting inside the hotel and in consequence of their purported act, one innocent person lost his life while the other two received gunshot wounds of grievous nature. From the above facts alleged against them prima facie, no other conclusion can possible be drawn except the one that the :petitioners had resorted to firing at the complainant‑party in furtherance of common intention of unlawful assembly for putting them to death. The mere fact that Javed Aslant, accused‑petitioner was less than 16 years of age at the time‑of commission of offence, does not confer upon him a right to be released on bail under the proviso to Section 497 (1), Cr. P. C. In view of the circumstances in which criminal act of killing a person is attributed to him, does not entitle him to this concession. Similarly, the argument of the learned Counsel for the petitioners that Bashir Ahmed, petitioner deserves his freedom on bail on the ground that no specific injury to any person from the complainant party is attributed to him by his firing, is of no avail to him. He was a member of unlawful assembly' who in furtherance of its common intention referred to above, had also fired at the complainant party and prima facie, he cannot be absolved o. the constructive liability in the commission of offence of murder and attempt to murder. In view of what has been stated above, it cannot b said that to determine the guilt of the petitioners, further inquiry is required thereby entitling them to bail pending such inquiry. For the foregoing reasons, the application of both the petitioners stands rejected. M. A. K. Application dismissed.