1999 PLP 795 (MLD)

Through this revision petition the complainant Taj Din has assailed the order of District Criminal Court Bhimber dated August 8-1997 whereby the respondents Nos. l and 2 were released on bail.

2. The precise facts culminating into present revision petition are that the complainant filed a F.I.R. at Police Station Barnala wherein it was alleged that his son Mr. Muhammad Abass and Muhammad Aslam (accused) had a fight during Ramazan on account of which Muhammad Aslam was injured by fire am at the hands of his son. Consequently Mr. Muhammad Abass was in Jail an( Muhammad Shafique (deceased) was defending his son in legal matters According to the complainant, the complainant party reached a compromise b; the intervention of Muhammad Fayyaz, Salah-u-Din alias Teepu and Haj Muhammad Tufail etc and Muhammad Aslam was compensated by paying his Rs. One Lac. However, Muhammad Aslam accepted the compromise provide the complainant party (Haji Taj Din etc.) apologize from his father Mr. Alla Ditta by visiting his native Village Paur. The complainant party accordingly decided to visit the said Village on 23-3-1997. The complainant alongwith Muhammad Shafique, Abdur Rehman, Salah-ud-Din and Muhammad Fayyaz departed for Village Paur from Lahore on 23-3-1997 at about 4/5 O'Clock early in the morning on a jeep No.159-733 Karachi and reached a bridge near Paur at about 9. a.m. They were obstructed by Muhammad Aslam, his brother Mesa. Iqbal and another anonymous person who were armed with fire mss. Muhammad Shafique was driving the Vehicle and by stopping the Vehicle they were asked by Muhammad Aslam and others to get down. Muhammad Shafique got down from the Vehicle and inquired the matter whereupon Muhammad Shafque and his companions were threatened by the accused party to face the consequences of assisting Muhammad Abass. The accused party opened fire by Kalashnikoves Muhammad Shafique was injured by the firing of Aslam and Mahzar Iqbal whereas Mr. Salah-ud-Din was injured by the firing of anonymous person who was later on known as Shoukat. The accused also fired at the Vehicle and ran away from the place of occurrence. According to prosecution, the occurrence was witnessed by the complainant himself and his companions Muhammad Fayyaz, Abdur Rehman and Salah-ud-Din.

3. Initially the case was registered under section 324/341 /337 P. P. C, The injured person Muhammad Shafique succumbed to the injuries and section 302, A.P.C and 13-20-65 A.O. was also added. During investigation the statements of complainant and other eye-witnesses including injured witness Salah-ud-Din were recorded. Post-mortem report and medico-legal report regarding injury on the person of Salah-ud-Din were obtained. The weapons of offence (Kalashni koves) were recovered from the accused Muhammad Aslam and Mazhar Iqbal at their pointation. Blood-stained pieces of glass and Tar-coal etc. were recovered from the spot on the same date i.e. on 23-3-1997. Bullet ridded Jeep No.159-733-Karachi was also taken into custody on the very day. The crime empties of Kalashnikove Numbering 21 and blood-stained clothes of the, deceased were also taken into possession by the police on the same day. The Chemical Examiner Report pertaining to nature of the blood found on different articles and report of Fire Arms Expert were also obtained. After completion of investigation a challan under sections 302/324, 341 A.P.C and 12-20-65 A.O was presented against the accused respondents in the Court of competent jurisdiction.

4. The respondents are now facing trial before District Criminal Court Bhimber. During trial the respondents moved the trial Court to enlarge them on bail. The request of the respondents was honoured . by the said Court and consequently they were given the concession of bail through the order dated 7-8-1997. It is the aforesaid order, the legality and validity of which has now been challenged through this revision petition.

5. The learned Counsel for the complainant while assailing the impugned order contended that the respondents were nominated in the F.I.R. which was promptly lodged and they were attributed an unambiguous role. The version given in the F. I. R, stood corroborated by the eye-witness including one injured witness, the learned counsel submitted. According to the learned counsel the witnesses were natural one. The learned counsel further submitted that the ocular testimony found corroboration by post-mortem report and medico-legal report. It was also argued that weapons of offence were also recovered at the instance of accused respondents The articles recovered from the spot, reports of fire arms expend Chemical Examiner also corroborated the F.I.R., the learned counsel maintained. The learned counsel vehemently argued that the trial Court acted quite contras to law governing bail matters while releasing the respondents on bail.

6. The learned counsel representing the respondents while supporting the impugned order argued that the trial Court had rightly allowed the bail application. and the impugned order warrants no interference.

7. I perused the record of the case keeping in view the respective contention's of the learned counsel for the parties.

8. No doubt, the deeper appreciation of evidence at bail stage is not the requirement of law pertaining to bail matters but nevertheless the fact remains that cases regarding. bail are not and cannot be decided in vacuum. The Court has to form a view by assessing the evidence on record tentatively. In the present case, the respondents are nominated in the F.I.R. which was lodged without any delay. They are attributed a clear role. The occurrence was witnessed by four eye witnesses including complainant. One of the eye witnesses was also injured during incident. The circumstantial evidence in shape of recovery of weapons of offence (Kalashnikoves) at the pointation of accused respondents, the post mortem report, the medico-legal report of injured person, recoveries of the blood-stained articles from the spot on the same day, the reports of Fire Arms Expert and Chemical Examiner, prima facie, link the accused respondents with the alleged offence. The case against the respondents clearly falls under section 497(1) Cr,P.C. By no-stretch of imagination it can be shifted to subsection 2 of section 497, Cr.P.C. The trial Court miserably failed to exercise its discretion in a judicial fashion. The respondents were released by the trial Court on no earthly reasons. The grounds given in the impugned order appear to be quite flimsy one.

9. It is well settled principle of law that discretion exercised by the lower Court in a capricious manner or against the settled principle of law pertaining to bail and the order passed by exercising the same arbitrarily cannot of allowed to sustain. Such like discretionary orders are to be recalled being requirement of law The evidence available on record do not suggest to enlarge the respondents-accused on bail and the impugned order merits interference by this Court therefore, accept the revision petition and re-call the impugned order dated 7-8-1997 by rejecting the bail application of accused respondents. N.H.Q./164/AJK Bail cancelled