1999 PLP 1777 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal is preferred against the order of Shariat Court of Azad Jammu and Kashmir passed on 11‑2‑1999, whereby the Revision Petition No. 134 of 1998 filed by respondent Hukam Dad was accepted to his extent and he was ordered to be released on bail.

2. The precise facts, forming the background of the present .appeal, are that on the complaint of Raja Abdul Qayyum the appellant herein, a case under sections 302/34, 337/324 and 341, A.P.C. read with section 13‑20‑65 (A.O.) was registered against respondent No. l and three others at Police Station Kotli on 19‑7‑1998 at 8 a.m. in respect of an occurrence which took place at 6‑30 a.m. on the same day. According to the F.I.R., the complainant appellant and accused persons are closely related to each other. A few days prior to the occurrence there was a dispute on the cutting of a tree between nephew of complainant appellant and one Riasat, who happens to be their relative. On 19‑7‑1998, at 6‑30 a.m. the complainant‑appellant alongwith Abdul Khaliq and Adalat Khan came out of the gate of their house while boarding on Carry Van for proceeding to Kotli at their shop. They saw accused Master Tariq. Muhammad Arif and Muhammad Yaseen, who stopped the Van and said to Abdul Khaliq, the brother of complainant, that his son Daud has misbehaved with their father and what action he has taken. Abdul Khaliq came out of the Van and replied to them that he had settled the matter amicably. The complainant also told them that the matter has been settled. At this Tariq accused fired with pistol at Abdul Khaliq which hit at his chest. The accused Muhammad Arif also fired at Adalat Khan which also hit him at his chest. Abdul Ghaffoor while hearing the firing came at the scene of occurrence. Muhammad Yaseen accused fired at his belly. Raja Hukam Dad son of Bagh Ali Khan, respondent No.1 herein, after hearing the noise of firing came on the scene of occurrence and raised Lalkara that he had also arrived, therefore, no one should be allowed to go alive. Thereupon, the accused persons while firing ran away. The occurrence is stated to have been witnessed besides the complainant by Muhammad Ghalib and Abdul Quddus. Abdul Khaliq, the brother of complainant, succumbed to the injuries at District Headquarters Hospital, Kotli. The accused persons thereafter ran away from the scene of occurrence while firing. Out of the accused persons Muhammad Tariq from the day of occurrence had absconded.

3. The police after necessary investigation forwarded the accused to face their trial in the District Criminal Court, Kotli. The accused Muhammad Arif, Muhammad Yaseen and Hukam Dad moved their bail petitions before the District Criminal Court, Kotli on 8‑8‑1998, which was rejected by the said Court vide order dated 14‑11‑1998. Being dissatisfied with the order of the trial Court, Muhammad Arif, Muhammad Yaseen and Hukam Dad accused preferred a revision petition before the Shariat Court which was rejected to the extent of Muhammad Arif and Muhammad Yaseen accused. However, the revision petition of Hukam Dad, respondent No. l herein, was accepted vide the impugned order of the Shariat Court dated 11‑2‑1999 and he was released on bail. It is the aforesaid order of the Shariat Court which has been assailed through this appeal by Abdul Qayyum complainant, herein, for the cancellation of bail of accused Hukam Dad, respondent No. I herein.

4. Arguing the case on behalf of appellant‑complainant, it was contended by Ch. Muhammad Azam Khan, the learned counsel, that in the F.I.R. though the role attributed to the accused‑respondent is only to the extent that he raised Lalkara that he had arrived at the scene of occurrence and no one should be allowed to go alive thereafter the accused persons while firing ran away from the scene of occurrence. However, P.Ws. Muhammad' Ghalib, Abdul Quddus and Abdul Ghafoor in their statements under section 161, Cr.P.C. have categorically stated that Hukam Dad accused caused an injury by stick on the head of Abdul Quddus and this fact stands supported by the medico‑legal certificate of Abdul Quddus, a prosecution witness. The learned counsel submitted that even the stick used in the commission of offence was recovered at the instance of the respondent‑accused from his house. According to the learned counsel for the appellant the accused was fully connected with the commission of offences alleged against him and he was vicariously liable for the commission of offence with the other accused persons whose bails were cancelled and who resorted to firing as a result of which Abdul Khaliq died in District Headquarters Hospital, Kotli but the Shariat Court committed an error by allowing the concession of bail to the accused‑respondent. The leaned counsel argued that the Shariat Court was impressed only by the role attributed to the accused‑respondent in the F.I.R. lodged by complainant, wherein a Lalkara has been attributed to the respondent. The learned counsel for the appellant further submitted that the question of bail is not to be decided merely in the light of F.I.R. but the other material which is collected by the prosecution during the course of investigation is also to be taken into consideration. It was also argued by the learned counsel that Hukam Dad, respondent No. 1, was sharing the common intention with other accused persons who have caused death of Abdul Khaliq and have injured prosecution witnesses by firing. Therefore, Hukam Dad being vicariously liable is responsible for murder committed by accused Muhammad Tariq. The learned counsel for the appellant in support of his contentions relied on reported cases titled, Mir Zaman v. The State (1994 SCR 11), Javed Aslam and another v. The State (1983 PCr.LJ 2597) and Muhammad Ashiq v. Muhammad Tufail and another (1977 SCMR 46).

5. Controverting the arguments raised by the learned counsel for the appellant, Mr. Sher Zaman Chaudhry, the learned counsel for respondent No. 1, submitted with vehemence that in F.I.R. the only allegation against the accused‑respondent is with regard to raising of Lalkara. In fact, on hearing the report of firing Hukam Dad is alleged to have reached the scene of occurrence after the completion of firing by Muhammad Tariq, Muhammad Yaseen and Muhammad Arif, accused. So, naturally the respondent could not have shared the common intention of those accused who resorted to firing and caused injuries to the deceased and the other witnesses. The learned counsel submitted that though in the F.I.R. the allegation against the accused‑respondent Hukam Dad is only to the extent of raising a Lalkara but even if we assume for the sake of arguments that he inflicted injury to P.W. Abdul Quddus with a stick, the injury alleged is only one which was simple in nature. Had the respondent shared the intention of other accused for committing murder no one could have stopped him from inflicting more injuries to Abdul Quddus. The learned counsel also submitted that so far as the recovery of stick at the instance of accused‑respondent is concerned it is of no legal value as the same is not stained with blood. The learned counsel also emphasised that it is not the case of prosecution that prior to the occurrence there was a meeting of minds of all the accused and that they prepared a scheme for committing the murder of deceased. In this view of the matter the learned counsel contended that the Shariat Court committed no illegality in granting the concession of bail to the accused respondent. Mr. Sher Zaman Chaudhry, the, learned counsel for respondent No. 1, in support of his contentions cited reported cases titled Fazalur Rehman v. The State (PLD 1981 SC (AJ&K) 10), Sultan Ahmad etc. v. The State (1981 SCMR 771) and Muhammad Akbar and 4 others v. The State and another (1978 SCMR 7).

6. Ch. Muhammad Mushtaq, the learned Additional Advocate‑General, appearing on behalf of the State, supported the arguments advanced by the learned counsel for the complainant‑appellant.

7. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record made available, we are of the view that in the F.I.R. the simple role attributed to accused respondent is merely of raising a Lalkara and the moment he reached at the place of occurrence the accused persons ran away. It is also on the record that after hearing the noise at the completion of firing the respondent is alleged to have reached the scene of occurrence. Therefore, at this stage, it cannot be said with any degree of certitude that he was sharing the intention of the other accused who resorted to firing and caused the death of deceased and fired upon the prosecution witnesses. At the stage of bail we cannot enter into the details that the prosecution after lodging the F.I.R. has made improvements in its case by attributing the stick injury caused on the head of Abdul Quddus by respondent No. 1 because the same is likely to prejudice the case of either of the parties, but at the same time we cannot ignore, this fact that the accused‑respondent made no overt‑act towards the deceased and allegedly inflicted, only one injury on the head of P.W. Abdul Quddus. It is yet to be determined at the conclusion of the trial as to whether the accused‑respondent was sharing the intention of the rest of the accused or not. Therefore, the case of accused‑respondent falls within f the purview of further inquiry and the order of Shariat Court suffers from no legal infirmity or illegality in allowing the concession of bail to accused‑respondent Hukam Dad.

8. The authorities cited by the learned counsel for the appellant and the learned counsel for respondent No. l need not be discussed as it is a settled principle of law that an authority in one criminal case is hardly relevant in the other criminal case because each and every prosecution case rests on its own peculiar facts.

9. For the aforestated reasons, finding no force in this appeal, it is hereby dismissed. N.H.Q./423/SC(AJ&K) Petition dismissed.