SAEED IQBAL Versus STATE
ORDER
All the appeals titled above are being disposed of by this single order as they arise out of orders of the District Criminal Court, Mirpur, dated 3‑12‑1986 and 16‑12‑1986 passed in bail applications in the same case registered at Police Station Mirpur against the appellants in Appeals Nos. 41 and 44 and respondents Nos. 1 and 2 in Appeal No. 43, under sections 307, 147, 148, 149 and 34 of the Azad Penal Code and section 15 of the Islamic Penal Laws (Enforcement) Act, 1974.
2. Briefly stated, the facts leading to the filing of the above appeals are that on 30‑10‑1986, at 10‑45 a.m., Chaudhry Ali Muhammad, Advocate, President Bar Association, Mirpur, informed the Station House Officer, Police Station Mirpur on telephone that at 9‑30 a.m. on the same day, Mushtaq, Yunus, Saeed, Arshad, Ghafoor, Khaliq and Qurban, residents of Khaliqabad, had grievously injured Shaukat Ali, Advocate in a murderous attack on him who had been brought to District Hospital Mirpur in an injured condition. On the above telephonic first information report, a case was registered against the accused named therein at Mirpur Police Station under sections 307. 147, 148, 149 and 34 Azad Penal Code and section 15 of the Islamic Penal Laws (Enforcement) Act.
3. Mushtaq, Muhammad Yunus, Abdul Ghafoor and Zaffar Iqbal, accused, who were arrested by the police in connection with the said case, made a bail application before the Tehsil Criminal Court Mirpur on 3‑11‑1986 but their above application was rejected by the said Court vide its order, dated 12‑11‑1986. The aforesaid accused then filed an appeal against the above order of the Tehsil Criminal Court rejecting their bail application, before the District Criminal Court, Mirpur, but the same was also dismissed vide order, dated 3‑12‑1986.
4. Haji Muhammad Khaliq, Qurban Hussain and Arshad accused filed an application for their pre‑arrest bail to the Shariat Court on 4‑12‑1986, which was dismissed on the same day by Mr. Justice Muhammad Akram Khan. The said accused then, after their arrest, moved the District Criminal Court, Mirpur, for their release on bail on 7‑12‑1986. Meanwhile, Saeed Iqbal accused had also applied for pre‑arrest bail before the District Criminal Court and had obtained ad interim pre‑arrest bail. The District Criminal Court heard together the above bail applications, namely, one filed by Haji Muhammad Khaliq and others and the other filed by Saeed Iqbal for his pre‑arrest bail, which were decided vide its order, dated 16‑12‑1986, according to which the bail application of Haji Muhammad Khaliq etc. was accepted to the extent of Haji Muhammad Khaliq and Arshad accused, while the pre‑arrest bail granted to Saeed Iqbal was not confirmed.
5. Feeling aggrieved by the above order of the District Criminal Court, dated 3‑12‑1986 rejecting their appeal and refusing bail to them, Mushtaq Ahmad, Muhammad Yunus, Zaffar Iqbal and Ghafoor Hussain, accused, have filed the above Appeal No. 44 of 1986 against the same. Saeed Iqbal and Qurban Hussain, accused, have filed Appeal No. 41 against the order of the District Criminal Court, dated 16‑12‑1986 refusing bail to them, while Raja Shaukat Ali, the injured person, has also filed Appeal No. 43 against the said order of the District Criminal Court so far as it related to release on bail of Haji Muhammad Khaliq and Arshad, respondents therein.
6. I have heard the learned counsel for the parties in the above appeals and have also gone through the record of the case including the police diaries. Chaudhry Muhammad Sharif Tariq, Advocate, who represents the appellants in Appeals Nos. 41 and 44 above, has contended that there exists no reasonable ground for believing the said accused appellants to have committed any offence in which bail is prohibited and that the accusation to that effect against them needs further enquiry, for the following reasons:‑‑
(i) That in the first information report, there is no mention of the nature of the weapons being carried by the accused persons at the time of launching attack on the injured person nor any particular injury is attributed to any accused;
(ii) that there is no independent witness of the occurrence despite the fact that the Girls Middle School and about 15 to 20 shops are located near the place of occurrence and that the eye‑witnesses, besides being chance witnesses, are not only closely related to the injured person but are also either involved in the previous cases between the parties or are witnesses in them;
(iii) that there is nothing on record to show with certainty as to which of the accused was responsible for causing the grievous injuries to Raja Shaukat Ali, the injured person, as it is alleged that all the accused had started beating him with Lathis and hockey‑sticks;
(iv) that the number and nature of injuries on the person of the injured person and the parts of the body on which they were caused, do not go to make out a prima facie case that the injured person was attacked and beaten with a view to killing him and that there was nothing to prevent the accused persons to cause his death if they had intended to do so;
(v) that the injuries caused were not dangerous to life and are possible to have been caused by fall on the ground;
(vi) that in the facts and circumstances of the case, the maximum punishment is not attracted in the case and, as such, bail can be granted in an offence under section 307, Azad Penal Code; and
(vii) that the statements of the witnesses were recorded by the police after 10 days from the date of occurrence.
7. On the other hand, Chaudhry Ali Muhammad, counsel for Raja Shaukat Ali, the injured person, has made the following submissions in support of his contention that the appellants in Appeals Nos. 41 and 44 are not entitled to the grant of bail and that the bail to respondents Nos. 1 and 2 in Appeal No. 43 has wrongly been granted by the District Criminal Court, which requires to be cancelled:‑‑
(i) That all the accused persons, who are appellants as well as respondents in the above appeals, had formed an unlawful assembly with the common object to take away the life of Raja Shaukat Ali and it was in furtherance of the said common object that they launched attack on him and caused to him grievous as well as simple injuries with the result that each of them is liable for the commission of offence under section 307, Azad Penal Code, in which bail is prohibited under subsection (1) of section 497 of the Criminal Procedure Code; and
(ii) that the grounds on which Muhammad Khaliq and Arshad accused‑ respondents have been released on bail, are not recognised by the principles and law governing grant of bail in non‑bailable offences in which bail is prohibited under law. Muhammad Khaliq was only of the age of about 55 years and there was nothing on record to show that he was infirm or a sick person. Similarly, the mere fact that Arshad was a College student, did not bring his case under the provisions of subsection (2) of section 497 of the Criminal Procedure Code as he was not under the age of 16 years.
8. I have given my due consideration to the above contentions of the learned counsel for the parties in the light of the material on record, facts and circumstances of the case and the principles governing bail matters, after which I have come to the conclusion that all the accused in the case deserve to be released on bail. The bail of the accused in this case can only be refused if it is found prima facie that reasonable grounds exist for believing the accused to have committed a non‑bailable offence in which bail is prohibited, as it is now almost a settled principle of law that grant of bail is a rule while its refusal an exception in a case where it is discretionary with the Court to grant or refuse the same. When the above principle of law is applied to the facts and circumstances of the present case, one comes to the inescapable conclusion that prima facie there exist no reasonable grounds for believing that the accused had attacked and given beating to the injured person with the intention of taking away his life. It is in the statement of the injured person himself recorded under section 161, Criminal Procedure Code, that out of the accused, Saeed and Yunus, at the very outset, caused injuries on his legs, on receipt of which he fell down and after that, Ghafoor, Muhammad Khaliq, Zaffar, Arshad and Qurban inflicted injuries on his arms, back and head. According to the report of the doctor, 7 injuries were found to have been caused on the person of Raja Shaukat Ali, the injured person, out of which only one comprising small contusion ?" x ?" was over forehead. Out of the above injuries, injuries Nos. 1 and 4 recorded in the medical report, were found to be grievous which respectively consisted of swelling and deformity just above the left ankle joint and lacerated wound on left hand ? " x ?" over the dorsal surface. The grievous nature of the above injuries was only detected in X‑ray film/report. Other injuries found on the person of the injured person were of simple and minor nature. Thus, taking into consideration the nature of the injuries and the parts of the body on which they were caused and the weapons used in causing them, it cannot be said, at this stage, that reasonable ground exists for believing that the same were caused with the intention of killing the injured person. It is also alleged that one of the accused, namely, Mushtaq was carrying a pistol in his hand but this weapon was not used to kill the injured person although it is alleged by the prosecution that two shots were fired from it.
9. It cannot be said, at present, on the basis of the material on record that grievous injuries, namely, Nos. 1 and 4 mentioned in the medical report, were caused by any particular accused. In the police statement of Raja Shaukat Ali, it is clearly mentioned that all the accused, except Mushtaq, had inflicted injuries on his legs, arms, back and head and thus none of the above grievous injuries can be attributed to have been caused by any particular accused. It still remains to be determined as to whether the accused had armed themselves and formed unlawful assembly with the common object of causing injuries to the injured person with the intention to kill him or to inflict grievous injuries to him and thus, at this stage, none of the accused can be held liable for vicarious liability for inflicting any of the grievous injuries found on the person of the injured person. It is admitted fact that previous enmity existed between the accused and the injured person and that they are also involved in criminal cases against each other. This aspect of the matter is also a factor which cannot be lost sight of while considering the bail matter of the accused persons.
10. For the reasons stated above, I am of the opinion that the cases of all the accused‑appellants and respondents fall within the ambit of the provisions of section 497(2) of the Criminal Procedure Code as further enquiry is needed into the allegations made against them and, as such, they are, as of right, entitled to the grant of concession of bail till such enquiry. Accordingly, Appeals Nos. 41 and 44 are accepted and the appellants therein are ordered to be released on bail provided they furnished bail bonds in the sum of Rs.50,000 each with one surety and personal bonds in the like amount each to the satisfaction of any 1st Class Magistrate, Mirpur. Appeal No. 43 is dismissed.
S.A./84/A/A.Sh.C ??????????????????????????????????????????????????????????????????????????????? Bail granted.