2007 P Cr (PLP)

SARDAR M. ASHRAF KHAN, J.

The above titled appeal has been directed against the judgment of Additional District. Criminal Court, Rawalakot dated 9-3-2007 whereby, the application for bail was disallowed by the said Court.

2. The brief facts forming the background of the instant appeal are that the complainant lodged an F.I.R. at Police Station Rawalakot on 17-8-2006, stating therein that he was running the business in Islamabad acid Rawalakot. On 16-8-2006 at 11-32 p.m. he received a telephone call by Mobile No.0301-5643704 of an anonymous person. During conversation the unknown person asked him to make the payment of Rs.20 lac, even otherwise he would be killed and disconnected the call. Again at 1-30 a.m. there was an explosion in front of his house and the material of blast was lying there. After that at 2-27 a.m. again a call was received from the aforesaid Mobile number, upon which the unknown person told him about the consequences. The complainant informed Muhammad Javed Sadiq, Muhammad Faazal Khan, and Waheed Khan, that some culprits tried to kill him and his family. On this report a case under sections 324, A.P.C. and 3 Explosive Act was registered against the unknown person.

3. After registration of the case, the police started investigation. During investigation the police traced out Mobile No.0301-5643704 which was under the use of accused-appellants before and after the explosion. After the recovery of aforesaid Mobile, the accused-appellants were apprehended by the police. After their arrest they moved an application for bail before Additional District Criminal Court Rawalakot which was disallowed by the said Court vide its order dated 9-3-2007. Hence this appeal.

4. Sardar Muhammad Hussain Khan, the learned counsel for the accused-appellants argued that the trial Court committed grave illegality while disallowing the bail application of the appellants. The learned counsel further contended that the accused-appellants have been involved in a False case on account of enmity. The learned counsel submitted that the case of the accused-appellants falls within the ambit of further inquiry therefore, by accepting the appeal they may be released on bail.

5. On the contrary, Sardar Shamshad Hussain Khan, the learned counsel for the complainant argued that the accused-appellants committed a heinous offence, therefore, the loser Court has rightly disallowed their bail application. The learned counsel defended the impugned judgment on all courts.

6. I have heard the learned counsel for the parties and perused the relevant record with utmost care.

7. In the present case nobody has been nominated in F. I. R., however, Mobile No.0301-5643704 is alleged to have been used for committing the offence. The material collected in this behalf consists of Mobile number and explosive material. It appear from the report under section 173, Cr.P.C. that the accused-appellants have been arrested on suspicion of having used the' alleged Mobile Phone No.0301-5643704. It is contended that after recording the F.I.R. the efforts were made to trace out the owner of the alleged SIM used for committing the offence. In this regard a special constable was deputed to concerned company for tracing out the owner of the SIM however, no information was provided. Again I.B. Government of Pakistan was approached through official letters to provide the print of above mentioned SIM of the period from 14-8-2006 to 26-8-2006 as to trace the incoming and outgoing calls from the said number, but the subscriber of the said number was reported as unknown. However, a print was procured which reflects the calling and called numbers. But no source of the same from whom this print was procured brought on record. It is reported in report under section 173, Cr.P.C. that during the secret efforts made in this behalf it was .found that the SIM was under the use of Imran Sharif who was apprehended.

8. It also appears from the record that Imran Sharif recorded his confessional statement on 8-9-2006 in which he has stated that his mobile was used by different persons belonging to Jhelum, and Lahore and also by his accused brother. This aspect of the case along with the statement of complainant recorded on 8-9-2007 reveal that the alleged SIM was used by different persons 'including the accused appellant thus, in the circumstances it cannot be said with certainty that the same has been used by the accused appellant alone. The SIM used for the alleged crime was recovered on 28-8-2006 after 12 days of occurrence. Therefore, it was not possible for accused to keep use same as proof of guilt against them.

9. I have perused the statement of complainant along with the Expert Report of Civil Defence, which reveals that the explosive material sent for opinion is unused, as such no opinion can be formed.

10. It is well-settled principle of law that deep scrutiny of evidence is not permissible at the bail stage, yet the matter cannot be decided in vacuum, anal a tentative assessment of the evidence is to be made. Therefore, keeping in view the principle, the evidence produced in this case prima facie reflects to be hinging on suspicions and doubts with regard to the involvement of the guilt or innocence of the accused therefore, when the guilty of innocence are equally balanced by virtue of available material along with circumstances as discussed above, it would be fair and just to grant bail rather then to refuse. Because when the Court comes' to the conclusion by examining the substance of inquiry/investigation, or trial that the alleged guilt of the accused is not free from doubt, it is just and fair to give the benefit of such doubt by granting bail to him.

11. For the reasons listed above, I accept this appeal by setting aside the impugned order. Therefore, it is ordered that the accused appellants shall be released forthwith on furnishing bail bonds in sum of Rs.1 lac each and personal bonds in the like amount to the satisfaction of any member of Tehsil Criminal Court Rawalakot, if not required or involved in any other case or offence. H.B.T./20/Sh.C.(AJ&K) Bail granted.