1997 P Cr (PLP)

(xi) that keeping in view the heinous offence committed by the accused, none of them is entitled to concession of bail, whether after arrest or pre-arrest. The learned counsel for the complainant referred to-the following authorities in support of their contentions:-- (i) PLD 1984 SC 192, (ii) PLD 1983 SC 82, (iii) PLD 1989 Pesh. 227, (iv) 1988 SCMR 541, (v) 1981 SCMR 1092(b), (vi) 1978 SCMR 236(a), (vii) 1994 SCR (AJK) 12(b), (viii) 1994 SCR (AJK) 272, (ix) 1994 SCR (AJK) 136, (x) 1994 SCR (AJK) 59, (xi) 1985 PCr.LJ 1546, (xii) 1987PCr.LJ 27(c) (xiii) PLD 1983 SC 82, (xiv) PLD 1991 Pesh. 51, (xv) 1989 PCr.LJ 2140, (xvi) 1988 PCr.LJ 1370, (xvii) 1985 PCr.LJ 538 (xviii) 1991 PCr.LJ 732, (xix) 1983 SCMR 15, (xx) 1988 SCMR 541,

6. The learned Additional Advocate-General has supported the arguments advanced by the learned counsel for the complainant though the State has not filed any appeal or revision against the impugned order. 7. 1 have heard the learned counsel for the parties and also gone through the record including the police diaries as well as the case-law cited by the learned counsel for the parties. While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisos maintained under subsection (1) of section 497, Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C. It may also be stated that the matter of pre-arrest bail has to be dealt with in accordance with the conditions laid down by the superior Courts from time to time in addition to the conditions laid down under section 497, Cr.P.C. The most essential of them are that the intended arrest would be tainted with mala fide and it must be established that the accused-petitioner apprehends his arrest on account of ulterior motive or the prosecution is motivated by malice as to cause irreparable injury to his reputation and liberty and police is motivated on political consideration or other ulterior reasons. The extraordinary jurisdiction of anticipatory bail, which has the fact of diverting the normal course-of law, has to be exercised with caution.

8. The first question to be considered is whether the Court can assess the incriminating material and evidence brought by the accused or there are restrictions on Court's power to assess the evidentiary value of the material placed before it. The leading case on the subject is that of Khalid Saigol v. The State PLD 1962 SC 49 wherein the Court consisting of Mr. Justice A.R. Cornelius, C.J., Mr., Justice B.Z. Kaikaus, J. and Mr. Justice Hamoodur Rehman, J., pronounced the judgment as follows: "It will be observed that even under section 497(1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a 'circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court, and as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists. "

9. In a latter case titled "Manzoor and 4 others v. The State" PLD 1972 SC 81, Mr. Justice Sajjad Ahmed Jan, J. (as he then was), observed that the power conferred by section 497, Cr.P.C. is not arbitrary power. It has to be exercised by reference to material placed before the Court and as to what that material should be. That material would consist of accusation made in the report made to the police, nature and credential of evidence, which the prosecution proposes to lead in the case and all other relevant circumstances surrounding the occurrence. The other relevant circumstances would include the evidence produced by the accused and bail has to be allowed or rejected on the basis of this material.

10. The question with regard to assessment of evidence also came under consideration before the Supreme Court of Pakistan in a case titled "Khalid Javed Gillan v. The State" PLD 1978 SC 256, wherein the following observations were made:-- "It follows that the Court has to make a tentative assessment of its evidentiary value in order to decide a bail application, -the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of a Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial -of the accused begins, therefore, whilst deciding a bail application, the Courts ands especially the superior Courts must refrain directly or indirectly, from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for Bail may fail, if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shirk its obligation to decide the application for bail before it, and that application can only be decided by Court's belief about the material produced before it: " A similar proposition also came under consideration before the Supreme Court of Azad Jammu and Kashmir in a case titled Zahid Paris v. The State 1995 PCr.LJ 5 wherein it was held as under:-- "At the bail stage it is neither permissible nor desirable to make a deep scrutiny or minute study of the evidence on record. At the same time Courts are not expected to make an order in vacuum. The Courts of law are supposed to make a tentative assessment of the F.I.R., statements of P.Ws. recorded under section 161, Cr.P.C., the recovery evidence, the defence plea if any and other circumstances and facts of the case and to reach a conclusion whether in the given circumstances the accused are entitled to the concession of bail or not. " 11: Relying upon the authorities discussed above, it is concluded that in matter of bail, the Court has to make tentative assessment of evidence brought by the prosecution as incriminating material or by the accused in defence and the other surrounding circumstances as well as does not in terms contain any restriction on Court's power to assess the evidentiary value of the material placed before it. However, the Court has to refrain, directly or indirectly from giving any conclusive finding on the question of guilt or innocence of the accused.

12. Turning to the instant case, the following important features arising out of the prosecution case, are noticed:-- (i) That according to the statement of the District Magistrate, Kotli found in the police diaries, the information with regard to the occurrence reached him at 11-30 p.m. on 30-6-1996. The information also disclosed the death of Prof. Muhammad Kazim, Presiding Officer, in the occurrence and it did not disclose any more; (ii) that it is pointed out by the Investigating Agency that the wagon carrying the polling bags and staff was followed by the Duty Magistrate and a senior police official, Incharge of the area, in a vehicle which also reached there soon after the occurrence; (iii) that no report at the spot or at Kotli, after the occurrence, was made when the place of occurrence is situated at 15-20 minutes' journey away from the police station; (iv) that the injured persons are reported to have reached in the hospital within a short time; (v) that the F .R. was lodged next day at 7-30 a.m. at Police Station Kotl on July 1, 1996, by the complainant claiming to be present in the aforesaid wagon who is not reported to be injured; (vi) that the wagon carrying the polling bags and polling staff was escorted and following by two vehicles of Mujahideen of Jamait-e-Islami, who, according to prosecution, were armed and they also made firing when the assailants attacked on the wagon through firing. The seat of the injury on the deceased is located near his left car, whereas the firing was claimed to have been made by the accused from the right side; (vii) that none of the Mujahideen in two vehicles described above, was examined except the one Mr. Aafai who did not identify any of the assailants; (viii) that member of the polling staff travelling through the aforesaid wagon, namely Muhammad Safeer, Patwari, Muhammad Iqbal, teacher, Abdul Qayum, Naib Qasid and Sajjad, driver of the wagon, did not nominate any of the accused persons or identify any of the assailants; (ix) that the prosecution after having recorded the statements of Sajjad, driver, recorded his another statement under section 161, Cr.P.C. on 25-11-1996 which contradicted the statement recorded earlier the latter statement recorded nearly after 5 months of the occurrence, contains the names Of Abdul Qayum, Mahmood Ahmed and Shakkoo who were identified as assailants while in the earlier statement he categorically denied to have identified any of the assailants. Number of respectables of the Kotli District, particularly the District Senior Officers which include Dr. Muhammad Shabbir Kiani, M.S. D.H.Q. Hospital, Muhammad Sadiq, D.A.-G. Muhammad Azeem, Steno of the Deputy Commissioner, Kotli, filed their affidavits and got their statements recorded before the Investigating Agency to the effect that accused Muhammad Nawaz, Ayyaz, Asghar, Muhammad Mushtaq, Shaukat Saleem and Abdul Qayum, were present at the relevant time of occurrence in the Control Room; (x) that no recovery was effected upon Muhammad Kabir, Mahmood Ahmed and Shafique, accused apprehended by the police including the one apprehended on the spot; (xi) that the only evidence of conspiracy available with the prosecution is the statements of Muhammad Ilyas and Iqbal, P.Ws. whose statements under section 161, Cr.P.C. were recorded on 15-7-1996 while the first informant disclosed about the conspiracy in the F.I.R. without having any information from the above two witnesses; (xii) that the only accused, Malik Shakkoo is alleged by the prosecution to have , caused fire-arm injury to Muhammad Kazim, deceased and Muhammad Shafique and Mahmood Ahmed, accused are attributed to have inflicted the injuries to Sajjad, driver while none of the other accused persons is attributed any specific injury caused to other injured persons; (xiii) that it is a night time occurrence took place on election day wherein the accused belonged to one party while the complainant party to other; (xiv) that some of the impartial witnesses do not support the prosecution version so far as their involvement towards the commission of offence is concerned; and (xv) that Ayyaz Asghar, accused is not nominated-in the F.I.R.

12. Keeping in view the accumulative effect of the features arising out of the prosecution case which may include the time of occurrence, conflicting statements of the prosecution witnesses, the First Information Report being lodged on the next day, some of the impartial witnesses not supporting the prosecution in respect of involvement of the accused persons, the affidavits filed before the Investigating Agency by some of the important District Officers, stating for the accused Muhammad Nawaz, Malik Mushtaq, Shaukat Saleem. Abdul Qayyum and Ayyaz Asghar to be present at the relevant time in 'the Control Room, the evidence with regard to conspiracy being recorded after a lapse of nearly one month and 15 days of the occurrence make the case of further inquiry for the accused Muhammad Nawaz, Ayyaz Asghar, Muhammad Musthaq, Shaukat Saleem and Abdul Qayum.

13. The question whether the above accused are entitled to pre-arrest bail, it was claimed in their application moved for pre-arrest bail that they were innocent and were involved because of election enmity to prejudice their liberty and reputation. The question whether an accused person involved in a case attracting death penalty or transportation for life, is entitled to concession of pre- arrest bail, came under consideration before the Shariat Court of Azad Jammu and Kashmir in the case titled Gul Sanubar v. Nazir Ahmed PLD 1984 Sh.C. (AJ&K) 1 wherein it was held as under:-- "

The relevant provision of law relating to bail is covered under sections 496, 497, 498 and 561-A, Cr.P.C. Section 496, Cr.P.C. covers bailable offences. Non-bailable cases are dealt with under section 497, Cr.P.C. Section 497(1) provides that bail shall not be allowed in cases where sentence is likely to be '"awarded as death or life imprisonment. Subsection (2) of section 497, Cr.P.C. vests discretion to the Court to consider the question of grant of bail when in its opinion, the case was considered as one of further inquiry. The cases of bail pre-arrest are settled under sections 498 and 561-A, Cr.P.C. The scheme of law applicable to the non-bailable cases provides a guideline under section 497, Cr.P.C. and the Court is vested with jurisdiction to grant or refuse bail in the light of such scheme. The cases of bail pre- arrest, on the other hand, are dealt in a different fashion. It is always in presence of mall fide, apparent concoction fabrication and proposed compassionate grounds, which are considered the grounds for allowing bail pre-arrest. The Court is authorised to allow pre-arrest bail in presence of all or any one of the aforesaid reasons. In the present case, the lower Court seems to ignore the basic principle of bail before arrest. The case was not decided in a judicial fashion. It may be mentioned that in case of non-bailable offences, the Court should be slow in granting bail before arrest in absence of the reasons mentioned above. The tendency of leniency and latitude in bail has, in fact, aided in increase in the crimes." A similar proposition also came under discussion before the Shariat Court of Azad Jammu and Kashmir in another case titled Fazal Dad v. The State PLD 1987 Sh.C. (AJ&K) 10, wherein while deciding a pre-arrest bail application directly moved before it, the following observations were made:-- "

No hard and fast rule or principle can be framed as a guideline to apply squarely in bail matters, as each case is to be decided in the light of its own facts. Nevertheless, the question of bail pre-arrest is to be considered slightly on different footing by having recourse to the grounds of mall fide, concoction, self-defence, if any, accompanied by compassionate grounds. It is unnecessary that, all the grounds listed above must primarily exist in each case for bail pre-arrest. If all or any one of those grounds is available, alongwith the state of facts of case under consideration helping the defence in grant of concession of bail pre-arrest, Court should not hesitate to grant the concession of bail pre-arrest."

14. Relying upon the aforesaid authorities, accused Muhammad Nawaz, Ayyaz Asghar, Malik Mushtaq, Shaukat Saleem and Abdul Qayum, are entitled to concession of bail. Thus, agreeing with the opinion of learned Sessions Judge, Kotli, though on different grounds, accused Malik Mushtaq, Shaukat Saleem and Abdul Qayum are allowed bail and the revision petition filed against Muhammad Nawaz and Ayyaz Asghar, for cancellation of their bail, is dismissed. Muhammad Nawaz, accused shall also furnish bail bond in the sum of Rs.2,00,000 with his personal bond in the like amount, to the satisfaction of any Magistrate 1st Class, Mirpur/Kotli.

15. So far as Muhammad Ishaq and Muhammad Maroof accused are concerned; their bail application was rejected by both the members constituting District Criminal Court, Kotli. The abovenamed accused have also filed their revision petition against the order refusing pre-arrest bail to them. It was strenuously contended by the learned counsel for the complainant that the accused after having been refused pre-arrest bail, have not surrendered, as such are not entitled to be heard unless they surrender before the police. Reliance was also placed on Muhammad Akram's case 1993 SCR (AJK) 300.

16. Muhammad Ishaque and Muhammad Maroof accused, according to the record placed before the Court by the learned Additional Advocate-General, did not surrender after having refused pre-arrest bail. They filed their revision petition through Mirza Muhammad Nisar and Ch. Muhammad Yusuf representing them. It is a settled proposition of law that an accused not surrendering himself before the police after having been declined bail is not entitled to be heard. At conclusion of arguments, which started at Kotli and concluded at Mirpur on 7-12-1996, it was informed by the counsel for the abovenamed accused that they have surrendered themselves before the police. But in view of the fact that the arguments had already been concluded, it would not suffice to hear their petition. Therefore, it is held to be dismissed. They cane move an appropriate forum if they so feel advised.

17. Muhammad Kabir, Muhammad Shafique and Mahmood Ahmad, accused have been refused bail after arrest by the District Crimi1ial Court, Kotli. However, it was maintained in the order recorded by the Sessions Judge that the counsel for the accused has not pressed their bail application; as such the same is held to be dismissed. The other member constituting the Court, the District Qazi, has dismissed the application but has also failed to give reasons in support of above order. In the course of arguments, the learned counsel for the above accused was confronted with the above situation but they have not filed any affidavit in support of the plea that they have pressed the application on merits. '

18. In view of the above state of facts, the bail application of abovenamed accused cannot be considered on merits, particularly in the circumstances when there is no resolution in the eye of law, by the Court below. Therefore, their application is also dismissed without expressing any opinion on merits so that it may not prejudice their case if they feel so advised to move the trial Court afresh. The condition laid by the learned Sessions Judge with regard to said accused to move afresh only after the presentation of the challan against them, is also found to be against law. The accused are at liberty to move the trial Court afresh if they so feel advised even before the presentation of the challan, as held above. The reference is answered as indicated above and all the revision petitions are held to be dismissed as discussed above. N. H.Q. /26/Sh. C. (AJ&K) Order accordingly 1997 P Cr. L J 405