AYAZ ALI and others vs THE STATE

ORDER

1. ' All the five applicants have been sent up to face trial for the offence punishable under sections 302, 460 read with section 34, P.P.C.

2. ' The sole contention of learned counsel appearing on behalf of the applicants is that no specific role has been assigned to the five applicants for causing any hurt to the deceased and, therefore, they are entitled to be released on bail. He has placed reliance in this behalf on a D.B. Decision of this Court in the case of Rajib v. The State 2001 PCr.LJ 701. In this case bail was granted to the accused persons who were armed at the time of incident and were alleged to have made ineffective firing. Enmity already existed between the parties and, therefore, it was held that it was case of further enquiry into the guilt of accused persons. In the said circumstances they were granted bail.

3. ' The learned A.A.-G. Has opposed the bail application for the reason that the facts of the cited case are distinguishable as in the present case the accused persons are said to have committed house-breaking by night as all of them were found inside the cattle pen of the complainant party as stated in the F.I.R. And as such the provisions contained in section 460, P.P.C. Are attracted.

4. Section 460, P.P.C. Reads 'as follows:- "460. Persons jointly concerned in lurking house-trespass or housebreaking by night punishable for Qatl or hurt caused by one of them.--- If, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to commit Qatl of, or hurt to, any person, every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to the same punishment for committing Qatl or causing hurt or attempting to cause Qatl or hurt as is specified in Chapter XVI of this Code."

5. ' The learned A.A.-G. Has submitted that by virtue of provisions contained in section 460, P.P.C. Every person who is concerned in committing lurking house-trespass by night or house-breaking by night shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to the same punishment for committing Qatl or causing hurt or attempting to cause Qatl or hurt as specified in Chapter XVI of the P.P.C. The learned A.A.-G. Has, therefore, submitted that the principles on which reliance was placed in the case cited by the learned counsel appearing on behalf of the applicant are not attracted.

6. ' I have carefully considered the contentions raised by the learned counsel for the parties and I am persuaded to agree with the contention of learned A.A.-G. It is always to be kept in mind that a decision in a criminal case is not a precedent until and unless some principle of law is enunciated.

7. Hardly there are instances in which facts of two criminal cases are similar or identical. Each criminal case is to be decided on the basis cf its own merits and facts and circumstances of the said case. In the cited case on which the learned counsel appearing on behalf of the applicant has placed reliance, there was no allegation of commission of offence' punishable under section 460, P.P.C. And, therefore, the considerations in the cited case were entirely different than in the present case. The learned counsel appearing on behalf of the applicant has submitted that under the Islamic Law no innocent person is to be held behind the bars for commission of offence by another person. However, it appears that the learned counsel has ignored the fact that in Islamic Law the sanctity of a house occupies a very prominent place and out of six Maqasid-ul-Shariah, two are Hifz-ul-Nafs and Hifz-ul-Mal while the others are Hifz-ul-Ird, Hifz ul Din, Hifz-ul-Aql and Hifz-ul-Nasil.

8. Thus, out of six Maqasid-ul-Shariah, two are attracted in this case in which the fundamental right of the sanctity of the house, protection of the property and protection of life have been violated.

9. The provisions contained in section 460, P.P.C. Are in consonance with Maqasid-ul-Shariah and, therefore, by way of vicarious liability every person jointly concerned for committing lurking house- trespass by night or house-breaking by night has been made liable for punishment with imprisonment for life or even punished for committing Qatl although each and every person committing lurking house-trespass by night or house-breaking by night has not participated in commission of Qatl or hurt.

10. ' In view of the provisions contained in section 460, P.P.C. And specific allegation against all the five applicants namely, Ayaz Ali son of Sachal,

2. Dildar son of Gambo,

3. Dilair son of Gambo,

4. Bakhat Ali son of Juman and 5. Dhanar alias Sadullah son of Juman for committing housebreaking by night, they are also liable for punishment of imprisonment for life and for Qatl committed by co- accused Qamber. In these circumstances, I am of the opinion that it is not a fit case for bail and consequently, the bail application stands rejected.

11. ' Before parting with this order, I would like to mention that observations made in this order shall have no bearing on the merits of the case and the trial Court should consider the merits of the case after recording of evidence without being influenced by any observation made in this case as they are in respect of the principle of law and not in respect of the facts and circumstances in this case which are to be appreciated by the trial Court independently after recording of evidence.

12. ' In view of the fact that a large number of accused have been implicated in this case, the trial Court is directed to record the evidence of at least material witnesses within a period of four months from the date of receiving the copy of this order. If after recording of evidence of the material witnesses any bail application is submitted before the trial Court, the trial Court shall consider the same on merits notwithstanding the rejection of present bail application by this Court.