2004 PLP 643 (YLR)

Imtiaz Ahmad another accused/petitioner also moved his first bail application before District Criminal Court, Pallandri on 22-1-2000, which was dismissed vide order dated 1st March, 2000 but he did not challenge the aforesaid order before this Court. After recording of the evidence of some of the prosecution witnesses Imtiaz Ahmad, accused/petitioner filed second bail application before District Criminal Court. Pallandri on 24-7-2002, which was also dismissed alongwith the petition filed by Muhammad Akhlaq vide single order dated 23-11-2002. It is the aforesaid order which has been assailed by the petitioners through two separate revision petitions. Arguing on behalf of both the accused/petitioners, Sardar Mushtaq Hussain Khan, Advocate, the learned counsel argued with vehemence that the trial Court has committed an illegality while dismissing the second bail application of the accused/petitioners. The learned counsel has further contended that no ocular evidence is available in the present case and it rests upon the circumstantial evidence but the chain of the prosecution evidence is broken. The learned counsel also submitted that the identification parade was not held, which was necessary in this case under Article 22 of the Qanun-e- Shahadat Order because the culprits were not nominated in the F.I.R. The learned counsel pressed into service the submission that confessional statement of Muhammad Akhlaq accused under section 164, Cr.P.C. was recorded on oath after 20 days of his arrest, thus, not admissible in evidence and suffers from an illegality which cannot be cured and relied upon. The learned counsel for the petitioners maintained that another accused Ali Akbar has not yet been arrested and allegation of Zina has also not been proved against the petitioners. The learned counsel also argued that in the light of the prosecution evidence no offence is, prima facie, made out on the allegations against the petitioners but the trial Court failed to appreciate that the evidence was not sufficient to connect them with the crime. The learned counsel pointed out that accused/petitioners have not been convicted before, who are detained since year 1999 but the trial Court has exercised its discretion in an illegal and arbitrary manner, which is not sustainable. In support of his contentions, the learned counsel has cited the following authorities:-- (1) 1990 PCr.LJ 46. (2) 1995 SCR 104. (3) 1996 PCr.LJ 1970. (4) 1997 SCMR 971. (5) 2002 PCr.LJ 107. (6) 2002 SCR 450. (7) 2003 PCr.LJ

758. While controverting the arguments raised by the learned counsel for the accused/petitioners, Sardar Abdul Hamid Khan, Advocate, the learned counsel for the complainant has zealously argued that Muhammad Akhlaq, accused/petitioner has not challenged the order of this Court dated 31-8-2000 before the apex Court, which has attained finality, therefore, he is now debarred from raising the same points again. The learned counsel further argued that the perusal of the prosecution evidence recorded by the trial Court and the remaining evidence which prosecution intends to produce at the trial, makes it clear that no fresh ground is available to the accused/petitioners. The learned counsel pointed out that the trial Court is yet to record the important evidence of recovery and other material evidence which, prima facie, implicate the accused/petitioners with the commission of crime. The learned counsel maintained that the complainant party or the prosecution witnesses have no animus with the accused/petitioners, therefore, the question of false implication does not arise. The learned counsel has maintained that at the bail stage a Court is not permitted to dive deep into the merits of the case but it always summarily assess the material collected by the prosecution for the purpose of recording a reasonable conclusion with regard to the involvement of the accused in the offence alleged but it transpires from the cursory perusal of the prosecution evidence that the accused/petitioners can safely be connected with the commission of offence charged with. He defended the impugned order on all counts. Raja Mumtaz Hussain Kiani, the learned Additional Advocate-General, appearing on behalf of the State, has fully owned and supported the arguments advanced by the learned counsel for the complainant. I have carefully taken into consideration the points canvassed by the learned counsel for the parties, after perusing the record made available with care. At the very outset, it will be relevant to note that at bail stage it is neither permissible nor desirable to make deeper appreciation or minute study of the evidence available on record. The Courts are only expected to make a tentative assessment of the evidence either recorded by the Court or by the police under section 161, Cr.P.C. and the other material collected by the investigating agency, and after applying its judicial mind arrive at the conclusion whether in the peculiar facts and circumstances of the case, reasonable grounds do exist to connect the accused with the commission of offence or not. If reasonable grounds are available and an accused/person is, prima facie, implicated in the commission of an offence punishable with death or imprisonment for life, then the concession of bail cannot be granted to an accused. Let me first deal with the case of Muhammad Akhlaq, accused who has already approached this Court once before but his revision petition was dismissed vide order dated 31-8-2000. The perusal of his first bail application filed before the trial Court, the revision petition presented before this Court and the order dated 31-8-2000 recorded by this Court, reveal that the petitioner has already taken and, exhausted all the grounds before this Court which he has agitated in the instant petition, therefore, no fresh ground is available to Muhammad Akhlaq, accused for grant of bail. After disposal of the revision petition by this Court, the trial Court has recorded the evidence of Muhammad Bashir (P.W.2), Muhammad Aamir (P.W.3), Mst. Shereen (P.W.6), Mst. Parveen (P.W.7), Attique-ur-Rehman (P.W.14), Zia-ur- Rehman (P.W.15) and Muhammad Ishfaq (P.W.16) whereas the prosecution has abandoned the P.Ws.8 to 13 and

21. In this manner, the evidence of P.Ws.17 to 20 and 20 to 41 is yet to be recorded which includes 12 witnesses of recovery and the Investigating Officer alongwith Magistrates, who have recorded the confessional statements of the petitioners under section 164, Cr.P.C. It transpires from the tentative sifting of the prosecution evidence recorded by the trial Court and the prosecution evidence which it intends to produce at the trial that tangible evidence is available against the accused/petitioners, which, it left un-rebutted, may not lead to the inference of acquittal, thus, reasonable grounds to disclose the commission of alleged offence are available in the instant case. It will not be proper for me to determine the intricate legal questions of the case because it may damage the case of the prosecution or the defence. The accused/petitioners are involved in heinous offences' like rape, murder and Haraba. The nature of the allegation against them is that they raped a woman, murdered her and took away cash and other valuable articles which were recovered at their pointation coupled with the confessional statements recorded under section 164, Cr.P.C. In such-like cases, the normal rule is the refusal to grant bail. In this manner, the, trial Court has exercised its discretion with due care and caution, which does not smack of any arbitrary determination or whimsical thinking, thus, does not warrant any interference by this Court. So far as the case-law referred to by the learned counsel for the petitioners is concerned, have circumstances not identical with the one available in the present case and, therefore, are distinguishable. Even otherwise law in a particular case especially in bail matters has small applicability to the facts of other cases. For instance in the case titled Zahid Paras and others v. The State 1995 SCR 104, the case titled Farman Ali v. The State 1997 SCMR 971, the case titled Allah Ditta alias Dittu v. The State 1996 PCr. LJ 1970 and the case reported as Munir Ahmad v. The State 2002 PCr.LJ 758, do not deal with the bail matters in murder cases rather all these authorities deal with the cases of robbery and dacoity. Similarly, the case reported as Muhammad Israr v. The State 2002 PCr.LJ 1072, deals with the principle of confessional statement recorded on oath under section 164, Cr.P.C., which point as stated earlier, has already been disposed of by this Court vide order dated 31-8-2000, thus, does not require any analytical survey. So far as the authorities cited as Jeeyend alias Jeena and another v. The State 1990 PCr.LJ 46, Muhammad Shafat v. The State and Muhammad Rasheed v. The State 2002 SCR 450 are also distinguishable. In Muhammad Shafat's case, the son of the deceased had pardoned the accused/appellant, thus, the case being of "Diyyat" the accused/persons were released on bail. The upshot is that no ground for interference in the order passed by the trial Court has been made out. Hence, the petitions must fail and these are hereby dismissed. N.H.Q./59/Sh.C.(AJ&K) Bail refused.