DILBAHAR AWAN Versus STATE

1. This revision petition has been directed against the order of Sessions Judge Koth dated 19‑1‑1983, whereby he dismissed the application of the petitioners for enlarging them on bail.

2. The brief facts of the case are that the petitioners have been challaned under section 302 of A. P. C. read with section 34 of the A. P. C., for double murder.

3. Facts of the case are that a case was registered at Police Station Muzaffarabad en 22‑6‑1982 at about 9‑30 p.m. on basis of F. I. R. lodged by one Sarfaraz Mir. According to the F. I. R. complainant, Sarfaraz Mir was informed on 22‑6‑1982 at about 9‑00 p.m. by one Shaukat son of Gbulam Nabi that Zaffar Iqbal and Tariq Iqbal, the two brothers had been murdered on the said date at about 8‑30 p.m. The motive for murder as stated in the F. I. R. is that on 20‑6‑1982, Ii‑fan Ashraf and Arshad Durrani gave beating to one Gulzar Mir which subsequently, resulted in various incidents between the rival factions as detailed in the F.I.R. and consequently Javaid Durrani and others became inimical towards the deceased and thus, they had a hand in the murder of the aforesaid two brothers. The F. I. R. is silent about the detail of actual incident. Out of the seven suspects named in the F. I. R., four accused, including three petitioners have been challaned. Javaid Durrani has been challaned under section 302 of the A. P. C. while the present petitioners, namely, Abdul Majeed, Amjad Hussain and Dilbahar have been charged under section 302 read with section 34 of the A. P. C.

4. It may be observed at the very outset that arguments in this revision petition were heard and concluded on 10‑3‑1983. Sardar Rafique Mahmood Khan, the learned Additional Advocate‑General appeared on behalf of the State and addressed exhaustive arguments in support of the prosecution case. On 12‑3‑1983, the complainant, Sarfaraz Mir submitted an application that he wanted to engage a Counsel to address further arguments on his behalf and prayed that arguments may be reheard. The prayer for rehearing the arguments was rejected. However, the complainant was allowed to submit written arguments himself or through his counsel by the 13th of March, 1983. On 13‑3‑1983, he made another application that he could not contact one of his counsel who is practising at Lahore and two other counsel at Muzaffarabad are unable to submit written arguments for their personal reasons. However, the complainant, in his application owned the arguments advanced by the learned Additional Advocate‑General and briefly reiterated the same in the application. It may be observed that complainant has not been made party in the instant revision petition. In 'challani' cases, only State is necessary party and has a right of being heard. Complainant or his Counsel can only be heard if he is so permitted by the Counsel, representing the State. However, for his satisfaction, the complainant was permitted to file written arguments which he declined to avail fully and obviously, resorted to dilatory tactic as is evident from the contents of his application dated 13‑3‑1983.

5. I have heard the arguments and perused the record. Before dealing with the merits of the instant case, it may be pointed out that affidavits of seven of the prosecution witnesses, out of which four have been referred to by the learned Sessions Judge in the impugned order, were filed in the Court by the Counsel for the petitioners, whereby these witnesses have resiled from their statements made under section 161 of the Cf. P. C. They are, Zaffar Niazi, Altaf Hussain, Zahid Iqbal, Muhammad Arshad, Maqbool, Sadaquat and Saleem. It has been urged by the learned Counsel for the petitioners that although the testimony of the witnesses mentioned by the Sessions Judge in the impugned order, did not establish the circumstances which connect the petitioners with the commission of crime, yet after filing of the aforesaid affidavits, the reasonings given by the Sessions Judge for refusing bail, has lost its validity. He has urged that the aforesaid affidavits show that prosecution has falsely concocted the case against the petitioners. At least, the learned Counsel for the petitioners has argued that for the purpose of bail matter, it cannot be said, iii view of the affidavits placed on the record, that there are reasonable grounds to believe that petitioners are guilty of an offence punishable with death or transportation for life or in other words, they have shared a common intention with the principal offender in the commission of the offence. Two of the Prosecution witnesses, namely, Sarfaraz Mir complainant and Abdul Jabbar Mir P. W. have also filed affidavits, wherein it has been deposed that the heirs of the petitioners and some of other accused who are on bail, are threatening them to enter into a compromise with them. Abdul Jabbar Mir P. W., has also deposed that he is being threatened to give an affidavit in favour of the petitioners. It has been also averred by the complainant in his petition that eye‑witnesses who filed affidavits in favour of the accused‑petitioners, have been won‑over by the heirs of the petitioners.

6. The learned Additional Advocate‑General has contended that affidavits filed by the Prosecution Witnesses in favour of the petitioners, should not be given any weight and should not be considered while deciding the matter in band. He has referred to a case reported 1980 P Cr. L J 441. In that case, the complainant, at different stages, filed inconsistent affidavits, disowning and owning the contents of the F. I. R. The statement of the two eye‑witnesses in that case who supported the prosecution version, had also been recorded under section 164 of the Cr. P. C, It was opined by the learned Judge in that ‑case that the complainant filed inconsistent affidavits and that Khan Muhammad, the other P. W. who was an eye‑witness had also made a statement under section 164 of the Cr. P. C. in the presence of the accused persons and implicated all of them. The accused‑persons and were given an opportunity to cross‑examine the witnesses but they did not avail of the opportunity. It was, under these circumstances, that affidavits were not given any weight while deciding the bail matter. However, in case reported as 1979 S C M R 30, bail was granted in murder case where eye‑witnesses filed affidavits absolving the accused and they had also made statements under section 164 of the Cr. P. C, in favour of the accused. Without commenting as to the weight which might be attached to the statements under section 164 of the Cr. P. C. filed and affidavits in favour of the accused‑persons, the accused was bailed out with the observations that under these circumstances, it was difficult to say that accused‑person committed offence, as charged. In another unreported case which has been referred to in 1980 P Cr. L J 441, the High Court released the accused‑persons on bail in view of the affidavits filed by the prosecution witnesses in favour of the accused.

7. The learned Counsel for the petitioners has also argued that case against the petitioners has been concocted. He has urged that prosecution evidence in contradictory. He has further argued that the statements of Toseef Qadir, Rabia Qadir and Khanum Habibullah, show that they saw one persons fallen on the ground while only two persons were fighting in the street, whereas the second set of witnesses consisting of Abdul Hamid, Abdul Jabbar and Yusuf P. Ws. states that they saw eight or nine and at least more 5/6 persons who were fighting amongst themselves and some of these witnesses also named the present petitioners as participants in the fight. It was urged that second set of the witnesses is related and partisan, and they are falsely implicating the petitioner. In any case, it was urged that there being two different sets of witnesses which contradict each other lend support to the contention that at this stage, it cannot be said that there are reasonable grounds to believe that petitioners shared the common intention with the principal accused, Javaid Durrani in the murders in question.

8. The learned Counsel for the petitioners further urged that even without considering the affidavits filed in favour of the accused‑petitioners, were presence of at the place of occurrence even armed, without committing any overt act, would not justify the inference that petitioners shared common intention with the principal accused in the commission of crime. The learned Counsel has further argued that none of the P. Ws. states that petitioners caused any injury, either to Tariq Iqbal or Zaffar Iqbal deceased‑persons. The learned Counsel referred‑ to the post‑mortem, report and contended that deaths took place due to the injuries caused by sharp weapon ; each of the deceased persons had only one injury, caused by the blunt weapon, which according to the post‑mortem report, were also possible by fall. He has stressed that blood‑stained shirt allegedly seized from the body of Amjad Hussain petitioner, which, according to the Serologist report, was stained with human blood of `O' group, is not an incriminating circumstance because the principal accused, Javaid Durrani was also caused injuries with sharp weapon and was bleeding and his clothes were also stained with human blood having `O' group. Thus, the learned Counsel contended that it is probable that the stains on the shirt of Amjad Hussain, petitioner might have been caused from the blood which oozed out of the injuries caused to Javaid Durrani, the principal accused, especially so, when the prosecution case is that Amjad also accompanied Javaid Durrani, accused to the police station.

9. So far as Dilbahar is concerned, it is argued that he was not named as one of the suspected person in the F. I. R. ; he is neither alleged to have been armed with weapon nor alleged to have caused any injury. Mere blood‑stained sleeper produced by Maqsood P. W., who has also deposed in his affidavit that he did not know as to whom the sleeper belongs to, would not constitute a reasonable ground, to believe that Dilbahar petitioner is guilty of the offence, charged. The learned Counsel for the petitioners cited a number of authorities to substantiate his contention, some of which are as under.

10. In 1972 P Cr. L J 1257, accused‑persons were bailed out in offence under section 302, P. P. C. read with sections 148 and 149, P. P. C. The facts of the case were that no particular injury was attributed, specifically to any of the accused persons. There was only a general allegation that some people were firing from the roof while others were standing on the ground and were exhorting them.

11. In 1977 P Cr. L J 463, out of six accused‑persons, seeking bail, no overt act was attributed to three accused‑persons and the prosecution only alleged that they were present at the place of occurrence. Bail was allowed to the three accused persons on the ground that no overt act was attributed to them.

12. In P L D 1981 S C (A J & K) 10, the bail was granted to one of the accused‑persons who allegedly hurled stones at the deceased but did not contribute towards the death of the deceased. While reviewing a number of authorities, the learned Judges of the Supreme Court, held that the question of common intention was yet to be determined by the trial Court and thus, the discretion exercised by the High Court in enlarging the said accused on bail, was not interfered with.

13. In 1981 P Cr. L J 1190, bail was allowed to an accused‑person charged under section 302/34 of the P. P. C. who was armed with an hatchet and was present at the place of occurrence but he did not use the hatchet for committing the offence. The bail was granted with the observations that responsibility of the applicant, in sharing common intention with the principal accused in murdering the deceased, was yet to be established in the trial Court. The accused was released on bail.

14. In 1982 P Cr. L J 1600, the accused were charged for sharing common intention with principal accused in a murder case. They were released on bail on the ground that no fatal injury was attributed to any of them and that they were only charged for fisting and kicking the victim of the offence after he had fallen on the ground.

15. In 1980 S C M R 193, order of the Sessions Judge granting bail to the accused to whom onl y,Yalkara' was attributed, was upheld.

16. In 1970 P Cr. L J 559, the bail was allowed to accused‑persons. The facts were that some of the accused persons were carrying `Dangs' while others were armed with hatchets but only blunt side of the hatchet was used which resulted in death. It was held that it was not possible as to which of the accused‑persons caused fatal injury and thus, bail was allowed even to the accused‑persons who were alleged to have been armed with hatchets at the time of commission of offence.

17. In 1980 P Cr. L J 1298, the accused, charged for vicarious liability for committing murder, were admitting to bail by the High Court on the ground that they were only found to be present at the spot at the time of commission of offence and no overt act was attributed to them. It is argued before the learned Judges of the Azad Jammu & Kashmir Supreme Court in appeal that mere presence of the accused, itself constituted overt act and they should not have been released on bail. The contention was repelled with the observations that more presence at the site of occurrence, of a person, resident of the vicinity or who happens to go there by chance at the relevant time, would not itself lead to an inference of involvement in the crime, in absence, of any act of incriminating nature, such as actual participation in the crime by word or action.

18. In 1972 P Cr. L J 1257, the allegation against the accused was that he was seen at the spot at the time of occurrence. No overt act was attributed to the accused. He was charged for vicarious liability under section 30". C. P. C. read with sections 148 and 149, P. P. C. It was observed that it was not alleged as to which of the injuries was given by the accused and to whom. There was only a general allegation that some people were firing from the roof and some were standing on the ground and were exhorting them. Under these circumstances, the bail was granted to the accused in that case on the ground that no overt act had been attributed to the accused person.

19. In P L D 1976 Kar. 1202, the‑ accused was charged of offence under section 302/34, P. P. C. and was alleged to have been armed with hatchet but no hatchet injury was found on the body of the deceased and it was observed that responsibility of the applicant for sharing common intention with the main accused, was still to be established. Thus, the accused was released on bail.

20. The learned Additional Advocate‑General has also addressed lengthy arguments and contended that this Court should not evaluate the evidence at this stage and should only see as to whether there are reasonable grounds for believing that petitioners shared common intention with the principal offender. Javaid Durrani, in the murder of Tariq Iqbal and zafar Iqbal deceased. He has vehemently argued that affdavits filed by the P. Ws. In favour of the petitioners should not be considered, at all, at this stage. He has argued that blood‑stained sleeper of Dilbahar accused, produced by Maqsood P. W., the blood‑stained shirt of Amjad Hussain, accused and the fact that Majeed accused proceeded with Javaid Durrani armed with iron bar, are sufficient to connect the petitioners with the commission of the offence. It was argued that the aforesaid incriminating circumstances, prima facie, connect the petitioners with the commission of crime and as such, without entering into the deeper appreciation of the evidence, their prayer for bail must be rejected. He has relied on the following authorities in support of his contention.

21. In 1974 S C M R 163, it was observed that it was for the committing Magistrate to see whether there was prima facie case against the accused persons and the superior Courts, at the bail stage, should be hesitant to express any opinion with regard to the factum of prima facie case. However, it was observed that as the committing proceedings were in progress, the prosecution evidence could not be reviewed at that stage. The case of the defence was that accused who sought bail, acted in self‑defence. It was, under these circumstances, that bail was refused.

22. In 1979 S C M R 65, the bail allowed to one of the accused‑persons was cancelled on the ground that he had caught hold of the deceased and afforded an opportunity to the principal offender to inflict fatal blow.

23. In P L D 1967 S C 340, it was held that it was not possible, without full appreciation of the evidence relating to background of a crime and its actual commission to say that persons shouting Valkara' cannot be held to be guilty of an offence in view of the provisions of section 114, P. P. C. It was further observed that it was the function of the trial Court to appreciate the evidence and draw a conclusion therefrom, in relation to all the circumstances of the case. It was, under these circumstances, that petition, seeking bail was rejected.

24. In an unreported case N L R 1981 (7) 351, petitioners sought bail on the ground that several persons including seven Advocates, filed affidavits wherein they deposed that the petitioners were innocent. The affidavits were not given any weight on the ground that none of the deponents claimed to be an eye‑witness of the occurrence and thus, it was held that their affidavits did not carry any weight. This authority is distinguishable from the facts of the present case, because in the instant case, the witnesses who filed affidavits in favour of the petitioners, are the P. Ws. and they have resiled from the statements allegedly made by them under section 161 of the Cr. P. C. The other authorities cited by the learned Additional Advocate General and referred to above, do not relate to the liability under section 34 of the A. P. C. and merely reiterate the general principles of law regarding the bail matters.

25. After considering the arguments advanced by the learned Counsel for the parties in support of their respective contentions, in light of the authorities referred by them. I am of the view that grant or refusal of bail in a criminal case depends upon the peculiar circumstances of each case and it is not possible to lay hard and fast rules as to when a person, accused of an offence, punishable with death or transportation for life, should be released on bail. The only cretarion is whether in view of tentative assessment of the evidence and overall circumstances of a case, there are reasonable grounds to believe that accused is guilty of an offence, punishable with death or trans portation for life. The existence or absence of `reasonable grounds' should be judged in light of peculiar circumstances of each case. In the present case, the following factors have weighed me in admitting the accused petitioners to bail:-

(1) No overt act is shown to have been committed by any of the petitioners in the sense that they inflicted any injury to any of the deceased‑persons. The fact of their vicarious liability, can only determined in regular trial after recording the prosecution evidence.

(2) The cause of deaths in the instant case, is injuries caused by sharp weapon and none of the petitioners is alleged to have been armed with any sharp weapon. The simple injury, one each, on the bodies of the deceased‑persons, according to the medical report, is also ig possible by fall.

(3) The two sets of witnesses, as has been indicated above, give different versions with regard to the number of persons who were seen fighting in the street where the murders took place. According to one set one person was lying on the ground while two were fighting, whereas according to the other set, there were 8/9 persons or at least, more 5/6 persons who were seen fighting in the street. The truth would b only revealed after recording the evidence of the prosecution witnesses in the regular trial.

(4) The fact that Javaid Durrani, the main accused, also sustained injuries which, according to medical report, were caused by sharp weapon, His clothes were stained with human blood having 'O' group and shirt of Amjad Hussain petitioner who is alleged to have accompanied Javaid Durrani to the police station, was also stained with blood having 'O' group.

(5) The fact that. Dilbahar accused was not named in the F. I. R. as one of the suspected persons for the commission of the crime and the origin of the blood on the sleeper which allegedly belongs to him, was not traced due to insufficient material.

(6) The fact that the prosecution witnesses, some of which were referred to by the learned Sessions Judge in the 'impugned order, have resiled from their statement, allegedly made by them under section 161 of the Cr. P. C.

26. Before parting with the case, it may be observed that Sarfaraz Mir ands Abdul Jabbar Mir, P. Ws., who have filed affidavits alleging that some of they accused persons who are already on bail and their heirs are threatening them to enter into a compromise, with the complainant party and to give affidavits C in favour of the accused persons, may approach the proper authorities for the redress of their grievance. The petitioners, in any case, cannot be held responsible for the alleged acts attributed to the other accused, who are on bail and the heirs of the accused‑persons.

27. The upshot of the above discussion is that I accept the petition set aside the impugned order and admit the petitioners to bail in the sum of Rs. 75,000 (Rs. Seventy‑Five thousand) each, consisting of two parties in each case, with personal bonds in the same amount to the satisfaction of A. D. M. Muzaffarabad. In case, the needful is done, the accused-petitioner shall be released from the custody.

28. Revision accepted.