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Petitioner: FEROZE DIN and 2 others VS Respondent: Raja ABDUL RAUF KHAN and another
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Khurshid Khan, Sardar Said Muhammad Khan Title: FEROZE DIN and 2 others vs Raja ABDUL RAUF KHAN and another Case No.:Criminal Appeals Nos. 11/Mirpur, 16/Mirpur and 21/Mirpur of 1988, 2/Mirpur
JUDGMENT
Reported As: 1989 P Cr. L J 2158 Result: Order accordingly Judgment JUDGMENT ' RAJA MUHAMMAD KHURSHID KHAN, C.J.-- This order will dispose of all the four above-captioned appeals. They are moved against the judgments of the Shariat Court, dated 25-5-1988, 16-8-1988 and 12-1-1989 and are the outcome of the same occurrence. 2. The unfortunate incident which was registered at Police Station Khuiratta, vide F.I.R.. No, 84 of 1987, arises in the following way:- ' On 19-11-1987, fresh polls for the election to the membership of District Council, Kotli, from Electoral area of Union Council Seri were in progress at Polling Stations Anderla Ktehra. Two Polling Booths, one for the men and the other for women, were set up for the purpose in Boys and the Girls High Schools respectively. At 12-30 noon, Sub-Inspector Muhammad Tariq, S.H.O. Police Station Khuiratta, made a written report to the Officer Incharge of the aforesaid police station. The report was to the effect that he was on duty at the Gils' High School Anderla Ktehra at women Polling Booth where at about 9-45 a.m. Having attracted by the reports of firing and hue and cry from male Polling Station, he reached the spot and found Sakhi Muhammad son of Ditta and Shamim son of Ismail lying dead by fire-arms injuries. Karim, Muhammad Din, Shams Din, Alif Din, Sharaf Din, Muhammad Azim, Shah Muhammad, Fayyaz, Muhammad Ismail, Hussain Muhammad, Feroze Din, Muhammad Rashid, Muhammad Rafique, Muhammad Aslam, Muhammad Hussain, Siraj Din, Abdul Karim and Fateh Muhammad, the report entered, were noticed in injured conditions. It was further stated that Muhammad Jamil, Investigating Head Constable, informed him that altercation had started between Muhammad Rafique Nayyer, a contesting candidate for election to District Council membership and Imtiaz, the Polling Agent of his opponent candidate where an objection to the
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casting of invalid votes was raised. Thereafter, a quarrel ensued between the supporters of the rival groups outside the polling booth. During the quarrel the use of Lathis and stones was made and eight/nine unknown persons also started firing at the supporters of Muhammad Rafique Nayyer with the intention to kill them. As a result of the firing Sakhi Muhammad and Muhammad Shamim died on the spot while Muhammad Karim, Fayyaz, Muhammad Rashid and few other persons were grievously injured. He also made another report on the same day (Report No,85) in which the complainant party was, prima facie, shown as aggressor. ' On the first report, a case under sections 5 and 15 of the Azad Jammu and Kashmir Penal Laws (Enforcement) Act, 1974, read with sections 307, 147, 148 and 149 of the Penal Code was registered at Police Station Khuiratta, vide F.I.R.. No, 84 of 1987. ' On the next day i,e, 20th of November, 1987, one Baboo Feroze Din made an application to the Superintendent of Police Kotli, wherein 26 persons were entered as accused of murder and attempt to murder. The application entered that out of the accused named therein 23 persons, at the behest of the remaining three, armed themselves with fire-arms and Lathis, formed an unlawful assembly at the Polling Booth at Boys' High School Anderla Ktehra and thereafter with the common object of forcibly casting invalid votes and killing the voters of Muhammad Rafique Nayyer, launched an attack on the supporters of the said candidate, started firing, pelted stones and struck the voters with Lathis. The report also entered that Muhammad Taj, Khizar Hayat, Jhalla and Amratullah accused had fatally injured Sakhi Muhammad, Abdul Karim, Muhammad Shamim and Taj Muhammad, respectively by gunshots while Muhammad Ilyas and Ishratullah, accused, had also caused fire-arm injuries to Fayyaz and Muhammad Asghar. Riasat and Rehmatullah, accused, had fired at and injured him (Baboo Feroze). ' The application was sent by the Superintendent of Police Kotli, to S.H.O. Khuiratta to proceed under law. The Deputy Superintendnet of Police was required to conduct the investigation of the case. ' Apprehending their arrest in the above case, 21 persons applied for pre-arrest bail to the District Criminal Court, Kotli, who allowed the concession of bail to all but later on while disposing of the matter taken up for confirmation of bail, vide order, dated 20-1-1988, bails granted to four persons, namely, Raja Abdul Rauf, Muhammad Asghar Azad, Raja Abdul Hamid and Raja Nisar were confirmed and bail allowed to other abovesaid persons was cancelled resulting in the rejection of their bail application. ' Nineteen accused persons were, thus, arrested on 18-3-1988. They applied for bail to the District Criminal Court Kotli which vide order, dated 14-5-1988, allowed bail to eleven persons (accused), namely Faryad Ali Khan, Amratullah Khan, Mazhar Iqbal, Muhammad Aftab, Ajaib Khan, Hidayatullah son of Asmatullah Khan, Hidayatullah son of Rahim Dad Khan, Sajjad Khan, Muhammad Yaqub, Muhammad Ilyas and Muhammad Ashraf, while bail was refused to remaining eight persons, namely, Muhammad Riaz, Riasat Khan, Muhammad Imtiaz, Muhammad Ilyas, Khizar Hayat, Muhammad Taj, Rehmatullah and Murawwat Khan. It is to be noticed here that the bail was allowed to eleven accused persons by the District Criminal Court at two stages. ' Aggrieved by the aforesaid orders of the District Criminal Court, Kotli -first passed on 20-1-1988 and the second on 14-5-1988 -- the relatives of the deceased appealed to the Shariat Court (Appeals Nos. 9 and 26 of 1988) for cancellation of bail allowed to the accused under the aforesaid orders while the eight accused persons who were refused bail by the District Criminal Court vide its order, dated 14-5-1988, also appealed to the Shariat Court (Appeal No, 25 of 1988) for their release on bail. ' As said earlier, the Shariat Court, vide a consolidated order, dated 12-1-1989, disposed of two matters. Out of eight accused persons, who were refused bail by the District Criminal Court, four, namely, Muhammad Riaz, Muhamamd Imtiaz, Rehmatullah and Murawwat were allowed bail but declined to allow bail to the remaining four accused, namely, Khizar Hayat, Muhammad Taj Khan,
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Riasat Khan and Muhammad Ilyas. About Murawwat it was said that since Assad son of Muhammad Taj had forgiven Murawwat Khan for the offences committed in killing his father, Murawwat can only be convicted and sentenced to pay Diyyat and so bail had rightly been allowed to him vide Shariat Court's order earlier passed on 16-8-1988. By way of two separate orders, dated 25-5-1988 and 16-8-1988, the Shariat Court disposed of the other two matters entitled Abdul Rauf and another v. The State and Feroze Din and others v. Raja Abdul Rauf Khan and another. 3. It may be stated here that vide Shariat Court's order, dated 25-8-1988, appeal with regard to the involvement of Raja Abdul Rauf and Muhammad Asghar Azad for the reason that they were not included in the list of accused in the complete challan for want of prosecution sanction by the Government, was dismissed. 4. The above survey would provide background of the present appeals which have been moved to question the validity of various orders passed by the Shariat Court. ' The picture that emerges thus is this that four persons, namely, Riasat Khan, Muhammad Imtiaz, Khizar Hayat and Muhammad Taj, who were refused bail, have come up in appeal to question the validity of the bail refusing order of the Shariat Court (Criminal Appeal No,2 of 1989) while Feroze Din and others have appealed (Criminal Appeal No, 3 of 1989) to question the legality of the bail granting order of sixteen persons, namely, Muhammad Imtiaz, Rehmatullah, Muhammad Riaz, Faryad Ali Khan, Amratullah Khan, Mazhar Iqbal, Ajaib Khan, Hidayatullah Khan, Muhammad Ashraf, Muhammad Ilyas, Aftab Ahmed, Sajjad Khan, Muhammad Yaqoob Khan, Hidayatullah Khan, Raja Nisar Ahmed Khan and Raja Abdul Hamid Khan. By way of a third appeal (Criminal Appeal No, 11 of 1988), this very Feroze Din has called in question the order passed by the Shariat Court on 25-5- 1988 whereby Raja Abdul Rauf and Muhammad Asghar Azad were let off on bail as the Government refused to grant sanction for their prosecution in consequence of which their inclusion in the challan as accused was declined by the police. Fourth appeal (Criminal Appeal No, 16 of 1989) has been moved by Muhammad Ashgar Azad, whose application under sections 561-A and 439, Cr.P.C. For quashment of the order against him and Raja Abdul Rauf in challan case pending in the District Criminal Court under section 5/15 of the Islamic Penal Laws (Enforcement) Act, 1974, was refused by the Shariat Court on 16-8-1988. 5. The position, thus, now is that bail allowed to Raja Abdul Rauf, Muhammad Asghar Azad, Raja Abdul Hamid and Raja Nisar is being challenged in this Court on the complainant side by way of two appeals (Criminal Appeal No, 11 of 1988 and Criminal Appeal No, 3 of 1989). In these appeals, in the first instance, bail granting order of eleven accused made by the District Criminal Court, namely, Faryad Ali Khan, Amratullah Khan, Mazhar Iqbal, Muhammad Allah, Ajaib Khan, Hidayatullah son of Asmatullah Khan Hidayatullah son of Rahim Dad Khan, Sajjad Khan, Muhammad Yaqoob, Muhammad Ilyas and Muhammad Ashraf on 14-5-1988 and bail allowed to three accused, namely, Muhammad Imtiaz, Rehmatullah and Muhammad Riaz by the impugned judgment of the Shariat Court are being questioned and sought to be avoided. 6. It may be mentioned here that the learned District Criminal Court has come to the conclusion that eight accused (out of them four are let off by the Shariat Court) are vicariously liable for the offence of murder and on this score bail was refused to them. As regards other accused, the District Criminal Court is of the opinion that since they are liable for their individual acts, on the basis of the evidence on record, they are entitled to the concession of bail. Bail thus was allowed to them. 7. The learned counsel for the appellant has contended that it is not possible to differentiate between the cases of the various accused regarding vicarious liability as has been done by the District Criminal Court. According to the learned counsel either all of the accused are to be held responsible with vicarious liability or each is to be saddled for his individual acts. We are of the view
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that it is neither proper nor possible at this stage to give a definite finding on the point. Suffice it to say that we see no reason to differ with finding of the Shariat Court that prima facie, at this stage, the principle of vicarious liability, in view of the circumstances of the case, does not justify to refuse bail to accused-respondents. Thus, the case of the accused persons, for the purposes of their bail is to be adjudged in context of their individual acts alleged to have been committed by them. 8. Let us now lay our hand on the cases. In the first instance, we propose to take up Appeal No,11 of 1988 entitled Feroze Din and others v. Raja Abdul Rauf and another. This appeal seeks quashment of the order, dated 25-5-1988. The order decides that since sanction for prosecution in respect of Raja Abdul Rauf and Muhammad Asghar Azad has not been accorded by the Government for their prosecution, the appeal to their extent stands dismissed as they cannot legally be taken as accused in the case. The order also stipulates that the above position is even agreed upon by the learned counsel for the parties. 9. Mr. Muhamamd Yunus Surakhvi, the learned counsel for Feroze Din, appellant, has not pressed this appeal. He agreed that since no sanction for prosecution has been accorded by the Government for the prosecution of Raja Abdul Rauf and Muhammad Asghar Azad, the above order passed by the Shariat Court is all legal and needs no interference. He stated that without sanction, the prosecution against Raja Abdul Rauf and Muhammad Asghar Azad was not tenable and the Shariat Court had committed no error in disallowing the appeal. In the circumstances, this appeal, having no substance, stands dismissed. 10. Let us now deal with Appeal No, 16 of 1988 captioned Muhammad Asghar Azad and another v. The State. In this appeal, Muhammad Asghar Azad, against whom the Government refused to accord sanction for prosecution, seeks vacation of the order made by the Shariat Court in his petition under sections 561-A and 439, Code of Criminal Procedure which sought quashment of the proceedings against him in the challan case pending in the District Criminal Court under section 5/15 of the Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974. Ch. Muhammad Taj, the learned counsel for Muhammad Asghar Azad, has not pressed this appeal and prayed for its dismissal. 11. We, for our own satisfaction, have also seen critically the impugned judgment alongwith the record. Since the Government declined to sanction prosecution against Muhammad Asghar Azad and another, the matter comes to an end. Without sanction, prosecution is never considered as permissive. Besides, the perusal of the impugned order of the District Criminal Court does not show that it had issued summons for the attendance of the appellant and Raja Abdul Rauf as accused persons; rather the proceedings in the case, on the incomplete challan put up by the prosecution, show that the notice for their attendance bcfore the Court was issued to all those persons who were granted bail during the investigation of the case which included the appellants also. 12. On careful reading of the impugned order it cannot be said that the trial Court had issued summons to the appellants for their attendance in the Court as accused persons. On the contrary it appears that all were summoned to appear before the Court on the next date because they were also amongst the persons accused in F.I.R.. And were granted bail by the Court during the investigation of the case. 13. In the above circumstances, the trial Court was directed by the Shariat Court to dispose of the application, dated 21-6-1988 of the appellants which required adjudication with regard to the jurisdiction or lack of jurisdiction of the Court to take cognizance of the case against them. The order of the Shariat Court, thus, we feel, suffers from no legal defect calling for our interference. For the foregoing reasons this appeal also fails and is refused hereby. 14. This now brings us to look into the third appeal captioned Feroze Din and others v. Muhammad Imtiaz and 15 others (Appeal No, 3 of 1989).
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' Mr. Muhammad Yunus Surakhvi, the learned counsel for the appellants, has contended that in the circumstances of the case, there appear reasonable grounds to believe that the respondents in this appeal, namely, Muhammad Imtiaz, Rehmatullah, Muhammad Riaz, Faryad Ali Khan, Amratullah Khan, Mazhar Iqbal, Ajaib Khan, Hidayatullah Khan, Muhammad Ashraf, Muhammad Ilyas, Aftab Ahmed, Sajjad Khan, Muhammad Yaqoob Khan, Hidayatullah Khan, Raja Nisar Ahmed Khan and Raja Abdul Hamid Khan, have committed the offence of murder or attempt to commit murder and the discretion exercised by the lower Courts (Shariat Court and District Criminal Court) in releasing them on bail is not in accordance with the principles governing bail matters. In elaboration, he contended that since the accused party had with them weapons of offence concealed, it would be legitimate to say that they have opened fire with the common object of murder and attempt to murder. In his view, the learned Judge in the Shariat Court and District Criminal Court erroneously held that element of common object was lacking in this case and every one of the accused, prima facie, was responsible for his individual act. 15. As against this, Ch. Muhammad Taj, the learned counsel for the respondents, argued that the lower Courts have exercised the discretion in a legal fashion in extending liberty of bail to the respondents-accused which cannot be interfered with unless it can be shown that discretion has been exercised perversely. He submitted that even from the facts as put forth by the prosecution, it transpires that it was, prima facie, a case of sudden fight and at present it would be too much to say that the respondents-accused had the intention, object or motive to murder or kill any of the persons from the complainant party. In his view, it was rightly held by the lower Courts that it is a case of further inquiry. He also contended that a counter-F.I.R.. Was lodged by one Lal in which it was alleged that the complainant party had mounted an armed attack on the supporters of Muhammad Taj, deceased, a candidate for election for the membership of District Council, as a result of which one Muhammad Taj (not the contesting candidate) was killed by gunshots fired by Feroze Din, P.W., and some of his other companions were injured. On the above premises, it was argued that it still remains to be determined as to which of the parties was aggressor. In this view of the matter, he also seeks bail for Khizar Hayat and three others, namely, Muhammad Taj Khan, Riasat Khan and Muhammad Ilyas. 16. We have given our dispassionate thought to the above contentions of the learned counsel for the parties. The first question which, in our view, needs consideration is as to whether the facts made out, prima facie, attract the principle of vicarious liability in the case. If the answer to the above question is in affirmative, then bail will be prohibited to the respondents-accused as the offences, they are charged with, are punishable with death or imprisonment for life. But if the answer to the above question is in negative, then the case of each of the accused at present is required to be determined on the basis of their individual involvement in the occurrence. 17. The Shariat Court has held that the principle of vicarious liability is not, prima facie, attracted in the case with the result that each of the accused involved is liable for his own individual act during the occurrence. On the basis of the view formed, the Shariat Court or the District Criminal Court allowed bail at different stages to the respondents in this case. 18. Let us see as to whether the Shariat Court or the District Criminal Court have exercised their discretion in allowing bail to the respondents in a legal fashion or the orders suffer from an infirmity glaring enough or floating on the face, to call for our interference. In the report submitted by the police under section 173, Cr.P.C. The case of the prosecution itself is:- (I) that at the time of occurrence polls were taking place for election to the membership of District Council, Kotli, at the male polling booth of polling station Anderla Ktehra, set up at the Boys' High School building, where the supporters of the rival candidates, namely, Muhammad Rafique Nayyer, P.W., and Muhammad Taj, accused, had gathered for the purpose of casting their votes;
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(ii) that inside the said polling booth, an altercation took place between Muhammad Rafique Nayyer and Muhammad Imtiaz accused who was acting as Polling Agent of Muhammad Taj, accused, on the objection over the casting of invalid votes; (iii) that Muhammad Imtiaz, accused, and some others made an attack on Muhammad Rafique Nayyer and started beating him; (iv) that when the news of the above beating reached outside the polling booth, the supporters of Muhammad Rafique Nayyer, who had gathered there for casting their votes, after breaking open the doors of the said polling booth, released Muhammad Rafique Nayyer from the clutches of the assailants and took him outside the booth premises; (v) that thereafter, a quarrel ensued between the respective supporters of the aforenamed contesting candidates and they started hurling stones on each other; and (vi) that it was at this stage that the accused resorted to indiscriminate firing etc. On the supporters of Muhammad Rafique Nayyer which act injured most of them resulting in the death of four persons. 19. It would, thus, appear that even from the prosecution story it cannot be said at the present stage with certainty that the accused had pre-planned the commission of the offence of murder as is alleged by the prosecution. The element of common object, till further inquiry, is not apparent. At present, prima facie, it can be at the most inferred that their presence on the spot at the time of occurrence was for the purpose of casting their votes. The mere fact that some of them carried with them fire-arms and Lathis, prima facie, we believe, would not necessarily lead to the inference, till further inquiry to be made by the trial Court, that they had formed an unlawful assembly with the common object of killing the contesting candidate, Muhammad Rafique Nayyer and his supporters. The possibility that the accused had taken the weapon of offence to meet any unhealthy situation is yet to be cleared. Till that time we think bail was rightly allowed by the Shariat Court. 20. In the above circumstances, it cannot be ruled out till further inquiry that in view of the situation prevailing, the accused persons might have come armed there with a view to meet any contingency that might have arisen during the polls. According to the evidence, the quarrel, it appears, ensued between the respective supporters of the contesting candidates on the dispute over the casting of an invalid vote by one of the supporters of Muhammad Taj, accused. The incident flared up and thus the accused are alleged to have caused injuries to some of the supporters of Muhammad Rafique Nayyer with fire-arms, Lathies and sharp-edged weapons, in the result of which four persons lost their lives while many others were injured. 21. If we give a dispassionate thought, at present, it is difficult for us to say with certainty that the accused had formed an unlawful assembly with the common object of killing the supporters of the opponent or it was in furtherance of the common object that they had fired at them causing the death of four persons and injuring some others making each constructively liable for the offence of murder. In the circumstances, the legal disability envisaged by the provisions of section 497, Cr.P.C. For allowing bail to the respondents is not attracted. ' Our conclusion, therefore, is that the learned Judge in the Shariat Court has committed no apparent error in saying that the vicarious liability of the accused for the commission of the offence of murder still remains to be determined by the trial Court and till such time the case of every one of them is to be adjudged on the basis of the individual acts committed by them during the occurrence. 22. When we examine the case in the light of the individual criminal acts alleged to have been committed by the respondents, we find that Muhammad Riaz, Muhammad Imtiaz and Rehmatullah, respondents, who were refused bail by the District Criminal Court on the ground that they are vicariously liable for the commission of offence, have rightly been allowed bail by the
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Shariat Court as reasonable grounds for believing them to be connected with the commission of offence punishable with death or imprisonment for life, do not exist in their case at the present moment, rather further inquiry is needed in the matter. 23. To have clarity, let us deal with their case in some details. The accusation against Muhammad Riaz, respondent, is that he inflicted injuries on the persons of Shah Muhammad and Ch. Keroo with stick and knife respectively. It is also alleged against him that he caused injuries to Muhammad Rafique, P.W., by firing a shot from his pistol. In the circumstances the truth of the above allegations, as held by the Shariat Court, needs further inquiry. It does not appeal to one's mind that Muhammad Riaz, at the time, was carrying three different types of weapons, namely, stick, knife and pistol and also used them one after another for injuring three different persons. This is to be still explained. Therefore, it still needs inquiry as to why he had chosen to strike the above-named P.Ws. Not with one weapon but with different ones. It also needs ascertainment as to whether he has caused injuries to the victims with a view to kill them as none of them had received any Nury on the vital parts of their body. ' On the above premises, our view is that at present no reasonable ' grounds are available for believing that Muhammad Riaz had made murderous attack on the life of anyone of the injured persons. Bail to him was, therefore, rightly allowed by the Shariat Court. 24. Next we take up the case of Muhammad Imtiaz and Rehmatullah, respondents-accused. Mr.…
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