Find a Lawyer

Criminal Miscellaneous No. 1095/13 of 1986, decided on 25th January, 1987.

---Ss.497(5) & 497--Penal Code (XLV of 1860), Ss.302, 307, 452, 148 & 149--Bail, cancellation/ grant of--Vicarious liability--Two of the accused allowed bail by Sessions Judge while to others refused--Suo motu notice issued to the accused who was released on bail, on bail application by another accused--All accused going to house of complainant armed with fire-arms, participating in occurrence--One investigating officer finding different motive for occurrence but his opinion not based on any evidence--Injured witnesses fully implicating accused--Accused forming unlawful assembly and trespassing into house of complainant with common object--Accused allowed bail by Sessions Judge resorting to firing in air for facilitating escape of their co-accused--Other two accused firing at pet dog and door of house of complainant--All accused, held, vicariously liable for committing offence of rioting, house-trespass, murderous assault and murder--Bail granted to accused by Sessions Judge was cancelled and other accused refused to be released on bail in circumstances.

Ehsan Qadir Shah and Sahibzada Farooq Ali Khan for Petitioners.

Zafar and Rajab, Respondents (in suo motu notice).

Abdul Rashid Sheikh for the State.

Syed Muhammad Zawar Shah for the Complainant.

This order shall dispose of Criminal Miscellaneous No. 1095/13 of 1986 filed by Nazar Hussain and Iftikhar Hussain for granting bait to them and Criminal Miscellaneous No. 1215/C.B-86, a suo moth notice issued to Zafar and Rajab, co-accused of the petitioners, to show cause as to why bail granted to them by Sessions Judge, Khanewal, vide order dated 11-11-1986 be not cancelled, as both the matters relate to the same F.I.R. No.77 dated 9-4-1986 under sections 302, 307, 452, 148 read with 149, P.P.C. registered at Police Station Sarai Sidhoo.

2. The occurrence took place in the house of Muhammad Hayat complainant, on 9-4-1986 at 4-00 p.m. The prosecution case is that few days before the occurrence Muhammad Hayat complainant, and his brother Sikandar P.W. on one side and Ghulam Muhammad and Muhammad Nawaz, co-accused of the petitioners on the other had quarrelled with each other over plying of wagons in the area. The latter had threatened the former that they would not allow them to ply their wagons and would also take revenge of the insult inflicted upon them. As sequel to this incident Nazar Hussain and Iftikhar Hussain (petitioners) with their co-accused Ghulam Muhammad and Muhammad Nawaz (not petitioners) armed with guns accompanied by Zafar and Rajab (respondents) armed with pistol and rifle respectively trespassed into the house of the complainant at the relevant ' time. Seeing them, the complainant hid himself behind "Bharola" (big earthen jar used for storing wheat) and his wife Mst. Ghulan P.W. and son Liaquat (deceased) aged 8/9 years entered the room out of fear. His brother Sikandar also ran into the room to save his life. Ghulam Muhammad accused (not petitioner) raised lalkara that they would kill all of them today and simultaneously fired a shot from his gun the pellets of which hit Liaquat (deceased) in the chest, abdomen and legs causing his death then and there. Mst. Gullan taking the Holy Qur'an in her hands beseeched the accused party to desist from killing...at her and caused numerous injuries on her ears, neck, chest, arms, abdomen and thigh. Nazar Hussain (petitioner) and Rajab (respondent) tried to break open the door of the room in which Sikandar P.W. had hidden himself but did not succeed whereupon Nazar Hussain fired shots from his gun as a result of which the plank of the door was broken. A pet dog of the complainant was barking at the assailants which was fired at by Iftikhar Hussain (petitioner) and,injured its nose and forehead. Nawaz son of Muhammad Bakhsh (P.W.) advanced towards accused who was given blows with the butt side of gun, by Ghulam Muhammad accused (not petitioner). Zafar and Rajab (respondents) fired from their weapons in the air to scare away the people and facilitated the assailants to escape from the spot.

3. The doctor found three contusions and one abrasion all simple in nature on the person of Muhammad Nawaz P.W., nine gunshot injuries 'on the person of Mst. Ghulan P.W. and numerous gunshot injuries on the person of Liaquat Ali (deceased) which caused perforation in his both lungs and hert and resulted in his death. Initially the case was investigated by S.I. Ghulam Shabbir from 9-4-1986 to 12-5-1986 who found all the accused including the petitioners as well as Rajab and Zafar, respondents, guilty of committing offence of rioting, murder and murderous assault. Mr. Shafi Salim, D.S.P., also went to the spot for verification of investigations on 14-5-1986, 21-5-1986 and 7-7-1986. He found that none from the two parties owned any wagon therefore, the motive alleged by the prosecution that a quarrel had taken place between the parties over the plying of wagons in the area was not correct. According to him the actual motive was that a' few hours before the occurrence Muhammad Hayat, father of the petitioners, passed through Chowk Nirroal in his jeep which was stoned by Umar Joota, a step brother of the complainant, Nawaz P.W. and Majja Sheikh. Learning about this incident the petitioners and their brother Ghulam (not petitioner) alongwith other accused as mentioned in the F.I.R. having armed themselves with fire-arms went to the house of complainant to take revenge of stoning of jeep of their father. He also stated that in view of a previous criminal history of Nawaz, co-accused of the petitioners, his impression was that the fatal shot had been fired by him' and not by Ghulam although no person claiming to be eye-witness of the occurrence had so stated before him. He also stated that the complainant had refused to get Nian (decision through local Punchayat) about innocence of the petitioners on the ground that accused party weilds great influence in the Illaqa.

4. All the six accused named in the F.I.R. applied for the grant of bail to Sessions Judge who while allowing bail to Rajab and Zafar, respondents, holding that their participation in the occurrence needed further inquiry but declined bail to the remaining accused, hence A this application. While hearing arguments at limine stage, I issued suo motu notice to Rajab and Zafar, respondents, to show cause as to why their bail should not be cancelled. Both the matters, i.e. bail application of Nazar and Iftikhar and suo motu notice for cancelling bail of Rajab and Zafar are laid before me today.

5. It is argued on behalf of Rajab and Zafar, respondents that their participation in the occurrence is doubtful; firstly because they are not related to the accused, namely, Ghulam, etc., who had dispute with the complainant party over the plying of wagons in the area or stoning of their father's jeep, and secondly nobody was admittedly hit by their firing rather they allegedly fired in the air only to scare away the people and, therefore, they had been rightly allowed bail by the learned Sessions Judge. As for the petitioners Nazar and Iftikhar, it is argued that shots fired by them did not hit Liaqat deceased or Mst. Ghullan the injured P.W. Iftikhar fired at the pet dog of the complainant which was examined three days after the occurrence which means that the injury of the dog was fabricated subsequently. Nazar petitioner is stated to have fired at the door to break it open and thereafter he did not injure anybody. His inaction after breaking the door, according to learned counsel, renders his participation as doubtful. It is also argued that the facts and circumstances do riot show either that the common object of the accused was to kill anyone of the complainant party and that is why none of able-bodied family members of the complainant who were almost at their mercy had been killed. Lastly, it is argued that the prosecution story is false inasmuch as false motive has been set up in the F.I R. as held by the D.S.P., Illaqa, therefore, the petitioners deserve' be released on bail. Learned counsel for the State assisted by learned counsel for the complainant have vehemently opposed the petition.

6. I have carefully considered the facts and circumstances of t h e case in tire light of arguments addressed by learned counsel for the parties. Both the Investigating Officers have unanimously found that all the accused named in the F. I.R including the petitioners; respondents went to the house of the complainant duly armed with fire-arms and participated in the occurrence, except that D.S.P.

Shafi Salim gave different motive for mounting attack on the complainant

party. He frankly conceded before me that it was simply his guess not based on any evidence that fatal shot was fired by Nawaz accused (not petitioner). The two injured witnesses, namely, Nawaz and M

Gullan P.W. who received injuries during the occurrence have fully implicated all the accused. Since the accused party including the petitioners as well as respondents herein armed with fire-arms formed an unlawful assembly and trespassed into the house of the complainant, may be with common object to round up the persons who allegedly stoned Hayat's jeep, but they were fully conscious that fire-arms would be used if resistance was offered by the other party and it was likely that some of inmates of the house would be killed in the process Rajab and Zafar, respondents, scared away the people by firing in air and thus facilitated members of unlawful assembly to escape from the scene. In the circumstances provisions of section 149, P.P.C. prima facie are fully attracted to the facts of the case. All the accused including petitioners /respondents, therefore, appear to be vicariously liable for committing the offence of rioting, house trespass murderous assault, and murder. In the circumstances, I am of the view that Nazar Hussain and Iftikhar Hussain, petitioners are not entitled to the grant of bail and Rajab and Zafar respondents, were wrongly allowed bail by learned Sessions Judge. Consequently, the bail petition, Criminal Miscellaneous No. 1095-B-1986 is dismissed and the bail granted to Rajab and Zafar, respondents, by the Sessions Judge is hereby cancelled who shall be arrested forthwith and lodged in jail during pendency of the trial.

7. It may, however, be observed that this order hall not stand in the way of petitioners/ respondents to repeat bail petition before the lower Court as and when any fresh ground becomes available to them in the normal course of events.

S.A./N-57/L Bail refused.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.