1984 P Cr (PLP)

Date of institution: 20th March, 1984. The reference of the District Criminal Court, Mirpur, dated 14th of March, 1984 rests on difference of opinion between the learned Sessions Judge and District Qazi, recorded in an application for bail.

2. The accused petitioners are facing trial on the charge of murder of Purvez Akhtar deceased and for causing injuries to Aurangzeb Feroze and Abdul Rauf, under sections 5, 14 and 15, Islamic Penal Laws Act read with sections 302, 307, 148 and 149, A. P. C.

3. The incident took place at 10 a. m. on 6th of September. 1981 at Bharing Tole Post, in the hotel of Feroze, where Said Muhammad, complainant and his two sons, Aurangzeb and Pervez Akhtar were sitting. It was alleged that the accused petitioners armed with 12 bore guns and 7 m.m. rifles, started firing on the complainant and his sons. Parvez Akthar was hit by the gun-fire of Javed Aslam, whereas the other witnesses were injured by indiscriminate intensive firing of Muhammad Rashid, Bashir Ahmed, Nasim and their companions Javed Aslam and Bashir Ahmed were apprehended and put to trial. They moved for bail but their prayer was declined by the trial Court on 31st July, 1982. On appeal, the learned Judge of the Shariat Court refused to grant concession of bail vide order, dated 20th October, 1982. The Supreme Court equally refused to allow bail to the, petitioners. The order of the Supreme Court was recorded on the 9th of March, 1983.

4. To appreciate the points raised in the reference and arguments addressed at the bar, it is conducive to reproduce the grounds of bail raised in the previous application. In previous application and memorandum of appeal, bail was sought on the grounds:- (i) (a) that it was a case of further inquiry, particularly when some of accused persons were dropped under section 169, Cr. P. C. ; (b) that as Aurangzeb was also shown to have fired on the accused from inside the hotel, the point of aggression was to be settled by further inquiry; (ii) that Javed Aslam, accused was below the age of 16 years and was eligible to bail; and (iii) that Bashir Ahmed, accused was not ascribed specific injury, caused to the deceased or other-injured persons. In the present application, all the grounds except No. 1, were reiterated and concession of bail was asked, particularly in the light of statement of Said Muhammad, complainant. Before discussing the objections raised before this Court, it will be useful to state reasons for difference of opinion between the members of the District Criminal Court. According to the learned Sessions Judge, evidence of Said Muhammad, complainant contained no material particulars, deviating from the previous position as entered in the F. I. R. and statement under section 161, Cr. P. C. As the points were properly settled by the superior Courts, in his opinion, in absence of fresh material particulars, there was hardly a justifica tion to grant concession of bail. Contrarily, the learned District Qazi Recorded several points, as admitted by the parties (in opinion of the Qazi) and felt advised to grant bail to Muhammad Rashid and Bashir Ahmed, accused petitioners. It may be stated here that the order recorded by the District Qazi is not based on sound reasons; it is patently absurd and injudicious. A study of the order reflects that the District Qazi despite having long experience, still lacks aptness and acumen to decide the question of bail in a judicial fashion.

5. Mr. Riaz Akhtar, the learned counsel for the petitioners emphasized that Muhammad Rashid and Bashir Ahmed, accused not having been connected with the particular injury, were entitled to conces sion of bail. It is true that the F. I. R. and evidence of Said Muhammad do not ascribe specific injury caused to deceased or injured persons, to either of the accused petitioners, but the fact remains that the accused -petitioners were explicitly named in the F. I. R. They are attributed firing with guns. The manner of indiscriminate and intensive firing, obviously, suggests that it was humanly impossible to make one to believe that who caused which injury. Keeping in view the time, place and mode of incident, at stage of bail, Court is not left with a choice to distinguish the case of Muhammad Rashid and Bashir Ahmed, accused petitioners, without resort to deep appreciation of evidence, which is obviously, not permissible.

6. It was suggested that the seating position and direction of Said Muhammad and Aurangzeb, as entered to the site plan, makes it difficult and impossible to see and identity the accused at the alleged place of firing. The contention is not well-founded. Said Muhammad who appeared as a witness, was not asked to demonstrate so as to show that keeping in view his direction and position, it was not possible for him to see the accused persons coming armed and firing on them. On the other hand, the witness plausibly gave the detail of incident and explained his position in order to identify the accused party and to ascribe the role of bring to each accused person. The question of appreciation of position and direction of witnesses and firing of the accused party, at this stage, is not desirable as the deeper appreciation is likely to cause bias to the parties. It is, therefore, considered proper to refrain from detailed discussion, to decide the objection conclusively. Suffice it to say that the objection is not convincing.

7. Next, it was argued that the case of Muhammad Rashid was not examined by the Shariat Court as well as the Supreme Court, as he did not move for bail. It was, therefore, argued that the case of Muhammad Rashid being fresh, all the points raised previously and settled in the light of the facts of the case, at this stage, were available for reappraisal. The contention does not sound well as the case of Muhammad Rashid and Bashir Ahmed is common and identical. The objections raised previously before the Shariat Court and Supreme Court, to seek bail, cannot be reconsidered in absence of new material. As pointed out earlier, the new material, as suggested by the learned counsel for the petitioners, is the evidence of Said Muhammad, complainant. The particular parts of evidence referred to during the arguments were examined to see as to whether those parts of evidence were sufficient to reconsider the question of bail. The parts of evidence when read in context of whole evidence of Said Muhammad, prima facie, were not found enough to modify the previous conclusion. The case-law cited at the bar, was not found helpful as the facts of all the cases were clearly distinguishable from the facts of the present case. It is well-settled that the cases of criminal jurisdiction are decided in the light of their own facts. The precedents provide guidance in application of legal principles and such principles are applied carefully and cautiously in cases which are closely common and identical. The general propositions of law laid down in the precedents, are undisputed but such propositions were not found attracted in the present case.

8. It was brought to the notice of the Court that Muhammad Rashid disappeared immediately after the incident and he was apprehended after the absconsion of a year. The allegation was not controverted by the Learned counsel for the petitioners. The fact of absconsion puts the Court on further alert while considering the question of bail of such an accused.

9. Before closing, it is considered necessary to state that the accused petitioners who were granted bail by learned District Qazi, are charged with the liability under section 149, A. P. C. It appears that the learned District Qazi was convinced to allow bail on account of absence of allegation of specific injury to the accused petitioners. The District Qazi lost site of the fact that the members of an unlawful assembly were equally liable in the eye of law. An observation to this effect already exists in & the orders of Shariat Court and Supreme Court. It seems that the District Qazi either did not care to go through the orders of Shariat Court and Supreme Court, recorded in appeals of the accused petitioners, or he failed to appreciate such findings or otherwise ignored it. Whatever the position may be, the order recorded by the District Qazi patently suffers from lack of aptitude to appreciate a question of law.

10. The points analysed above lead to the conclusion that the petitioners are not found entitled to the concession of bail at this stage. They are free to move afresh after recording of evidence of some of the injured persons. In case of fresh application, the District Criminal Court shall be free from the influence of this order, to record its order in exercise of judicial discretion. The reference is, therefore, answered accordingly. M. Y. H. Bail refused.