2000 PLP 1389 (YLR)

The legality and correctness of the order dated 13‑3‑1999 passed by District Criminal Court, Mirpur has been challenged through this revision petition whereby the interim bail of petitioner, herein was confirmed. The facts precisely stated are that, Alam Zaib filed a written report with S.H.O., Police Station Tothal, Mirpur alleging that on 31st of August, 1998 at 5‑30 p.m. he with Ali Zaib, deceased, Ansar Mehmood and Hanif were sitting on the Video Shop of Ali Zaib, deceased. When he got up from the shop and walked about 15 to 20 yards away, a white Suzuki Car in a very high speed came from Tothal side. As soon as he heard the sound of the brakes of the car he turned behind and saw accused Zahid and Arshid Mehmood coming down from the car along with three unknown persons whom he can identify. Messrs Zahid and Arshid Mehmood were armed with deadly weapons like Kalashnikov. They fired shots on the glasses of shop. Meanwhile, the complainant reached on the front of deceased shop when both accused entered into the shop. Zahid fired a shot upon the chest of the deceased, Ali Zaib, with an intention to kill him. Zahid again made another fire which hit upon the left knee of Muhammad Hanif. As soon as the people gathered around, the accused Zahid and Arshid with three unknown persons fled away from the place of occurrence. The occurrence was witnessed by complainant Muhammad Hanif, Ansar, Arshid, Shah Zaib and Abid Baig. The injured were carried to the Hospital but Ali Zaib, deceased succumbed to the injury in the hospital. The notice behind the occurrence is a quarrel between Zahid and deceased, in which deceased was injured but police arranged a compromise between them even though the accused did not forget the incident. It was also stated in the F.I.R. that on 30th of August, 199b at 7‑45 p.m. accused Zahid alongwith Haji Muhammad Ramzan came to his house and both of them made a threat in presence of the complainant and Shahzaib that they will kill Ali Zaib, deceased, when Ali Zaib came home at night he also told the same story to the deceased. He is with a firm view that accused Zahid has committed the crime on the instance of Haji Muhammad Ramzan. On this report a case under sections 302/324, 147/148, 149/452, 337‑F and 427/109, A.P.C. was registered. The respondent presented an application for pre‑arrest bail before District Criminal Court, Mirpur which was allowed and later on confirmed through the order impugned. Hence the revision petition. The learned counsel appearing on behalf of the petitioner, Muhammad Azam Khan, strenuously argued that it has been proved on the ‑record that the respondent alongwith the principal accused not only went to the shop of the deceased but also went to the house of deceased a day before the occurrence and threatened him to commit his murder. According to him, the principal accused committed the murder of the deceased on the instigation of the accused respondent. He also pointed out that soon after the occurrence the respondent‑accused absconded who did not surrender before the police or the Court for four months. The learned counsel further agitated that absconcion of the accused‑respondent is itself sufficient to disentitle him from the concession of the bail. He also submitted that the trial Court did not allow the benefit of section 169 of Cr.P.C. to the accused respondent and held that a prima facie, case does exist against the accused but later on extended the concession of pre‑arrest bail in an illegal manner. In support of his contentions he relied upon the following case law:‑‑ (i) PLD 1971 Lah. 195, (ii) PLD 1985 SC 402 and (iii) 1986 PCr.LJ 2983. Ch. Muhammad Mushtaq, the learned Additional Advocate‑General appearing on behalf of the State fully supported the submissions of the counsel for the petitioner‑complainant and argued that accused‑respondent was not at all entitled for the confirmation of ad interim bail. While replying the arguments, M.S. Tariq, the learned counsel for the accused respondent contended that P.Ws. Alam Zaib and. Shah Zaib are the real brothers of the deceased and no independent witness has been brought forward by the prosecution to connect the accused with the commission of the crime. He further argued that Ansar Mehmood (P.W.5) and Arshid Mehmood (P.W.7) filed two affidavits before police during the course of investigation and refused the prosecution story. According to the learned counsel, the case against the accused respondent is mala fide and concocted. He also pointed out that the accused‑respondent never knew about the occurrence and he left the town for his business activities, therefore, sufficient explanation of his absence is available upon the record and accused respondent cannot be declared as an absconder. It was also argued by the learned counsel for the accused‑respondent that accused did not commit an overtact, he was not present on the spot and no recovery has to be made by him. He also argued that the other three accused have also been bailed out and the investigation agency has also declared him innocent. Thus, in these circumstances the matter becomes of further enquiry and the impugned order is neither arbitrary no capricious. In support of his contentions he cited the following authorities: (i)1991 SCMR 322, (ii) 1993 PCr.LJ 683, (iii) 1994 SCR 136. (iv) 1995 PCr.LJ 1416. (v)1997 SCR

125. I have carefully considered the respective arguments of the learned counsel for the parties, the case‑law cited and the record of the case. At the very outset it will be relevant to point out that the accused respondent, was extended benefit of section 169 of Cr.P.C. by Police which has been duly considered by the Court below while passing the impugned order. . The learned counsel for the petitioner has much emphasised on the point of absconcion of the accused and submitted that mere abscondence of the respondent is sufficient to disentitle him to the concession of the bail. In this respect he relied upon the case reported as Awal Gul v. Zawar Khan PLD 1985 SC 402 wherein the bail of the accused‑persons. was cancelled in a case of double murder as also attempted murder. It was held in Arif Majeed and another v. The State and another 1986 PCr.LJ 2983 that the abscondence of the accused after getting their bail cancelled by the Shariat Court disentitled the accused persons from the right of bail but in some cases wherein notwithstanding abscondence the accused might be released on bail for example when the accused is a woman, a child or a sick or infirm person or when he otherwise becomes entitled to bail as of, right under subsection (2) of section 497, Cr.P.C. or the abscondence is satisfactorily explained by the accused. From the perusal of the abovementioned authorities it has become very much clear that the authorities cited by the learned counsel for the petitioner are distinguishable and needless to say that an authority in a criminal case is relevant only to the facts of the case in which the same is given (1993 SCR 122). It is evident that in the authorities cited by the learned counsel for the petitioner, the accused were involved in a case of double murder and in another case the accused‑petitioners did not surrender themselves before the Court after getting their bail cancelled by the Shariat Court. Therefore, these authorities do not help the contention of the learned Counsel for the petitioner that abscondence itself is sufficient for refusal of the bail. As already held above, in Arif Majeed's case the Apex Court of AJ&K has enunciated the principle that an absconder can be released on bail when the otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. or the absconcion is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence. Before adverting to the tentative assessment of the facts and surrounding circumstances of the case, I would like to refer a case reported as The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322, wherein it was observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, abscondence does constitute a relevant factor when examining the question of bail. Need not to be discussed in detail, the authority referred by the learned counsel for the respondent reported as Shah Jahan v. Imtiaz alias Papache and another 1993 PCr.L1 683, where the learned Judge of Peshawar High Court relied upon the dictum of Supreme Court of Pakistan, referred above. In the light of the abovementioned pronouncements of the Apex Court of AJ&K and Pakistan the proposition is now well settled that mere abscondencetis not sufficient to, refuse bail rather the attending circumstances may also be considered while passing an order of bail. The cursory examination of the facts of the case reveals that the allegation against the accused respondent is that he hatched a conspiracy against the deceased and made threats to the deceased and the P.Ws. In this respect, P.Ws. Alain Zaib and Shah Zaib deposed in their statements, recorded under section .161, Cr.P.C. that a day earlier of the occurrence the accused‑respondent threatened the deceased to commit his murder. In such state of affairs Arshid Mehmood was very important witness to prove the fact of threats attributed to the accused‑respondent .who was allegedly stated to be accompanied by the principal accused Zahid Mehmood (not before us). Alain Zaib (P.W. 1) also stated before the trial Court about the presence of Arshad Mehmood s/o Muhammad Hussain at the time of the threats but said Arshad Mehmood filed an affidavit during the course of investigation and‑ deposed that he and the accused respondent did not accompany Zahid Mehmood and never went at the residence‑of deceased on 30th of August, 1998. The allegation of threats on day time, at the shop of deceased by principal accused while accompanying the accused‑respondent was also refuted by Ansar Mehmood (P.W.S) in his affidavit, who stated that the accused respondent did not visit his shop at the day time. It is to be noted that Ansar Mehmood is a person who happens to be a partner of deceased in an Audio‑Vedio shop. According to the prosecution story the principal accused accompanied the accused‑respondent and threatened the deceased on day time at the deceased shop who again went at the residence of the deceased in the evening and warned the P.Ws. but the matter was not reported to tile police especially in the circumstances when the principal accused and the deceased had already a past history of enmosity. It is also to be considered that no overtact is attributed towards the accused/respondent. He was not present on the scene of occurrence and no recovery is to be made out from him. He was not alleged to have any hostility against the deceased. He voluntarily surrendered before the Court and the benefit of section 169, Cr.P.C was extended to him by the Police. All the abovementioned facts and circumstances when coupled with this j plea of the accused‑respondent that he did not abscond but remained busy in his business activities, suggest that the reasonable grounds do not exist for believing that the accused respondent is involved in the present case, rather the matter of the accused‑respondent because of its‑peculiar facts and circumstances needs further probe and inquity into his guilt within the contemplation of subsection (2) of section 497, Cr.P.C. I am aware of the fact that in the present case ad interim bail of the accused respondent has been confirmed by the Court below. It is settled position of law that pre arrest bail may be granted in the circumstances that arrest is being made for ulterior motives such as humiliation, unjustified harassment and is motivated so as to cause irreparable injury to reputation, liberty or on account of political consideration and when one of the conditions exist the pre‑arrest bail can be allowed while examining the facts of the each case. Dealing with the point in case reported as Muhammad Yunus and another v. Malik Muhammad Nawaz and another 1997 SCR 125 at page 137 it was observed as under: ‑‑ "The survey of the case‑law shows that while considering the question of pre‑arrest bail some of the necessary conditions mentioned above alongwith the facts of each case have to be seen. The power has to be exercised with reference to material placed before the Court. The material would consist of accusation made in the report made to the police, statements recorded under section 161, Cr.P.C. nature and credentials or evidence which the prosecution proposes to lead in the case, the medical report and. the plea of defence, if any, raised by the accused and all other relevant circumstances. The Court has to make the tentative assessment of evidence brought on record by the prosecution or incriminating material or by the accused in defence and the other surrounding circumstances and there is no restriction on the power of the Court to assess tentatively the 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. It was claimed by the present respondent alongwith other respondents in the application moved for bail pre‑arrest that they .were innocent and were involved in the case on account of election enimosity. We are not oblivious of the fact that in this part of .the country rival political factions do exaggerate the role played by their opponents and implicate the innocent people and widen the net more and more close to their political opponents. Thus some of the preconditions for grant of anticipatory bail in the present case, in our view, are prima facie satisfied. As regards the merits of the case it is neither possible nor proper for us at this stage to express our final view with regard to the proposed evidence likely to be produced by the prosecution or the plea raised by the accused during the trial. " One other very relevant fact, which requires to be observed here is that all the other co‑accused except the principal accused have been granted bail by this Court. Therefore, on the principle of consistency that is where an accused has been granted bail, other co‑accused similarly placed, could also be granted bail requires that the concession of bail already extended, be maintained in favour of the accused /respondent. It is also admitted position of law that even for the purpose of bail law is not to be stretched in favour of prosecution. If at all h any benefit of doubt arises, even at the stage of bail it must go to the accused. 1997 SCR

125. It will not be out of place to mention here that the revision petition has been directed for the cancellation of bail. It is settled principle of law that once bail has been granted by the Court of competent jurisdiction then strong and exceptional grounds would be required for cancellation thereof. PLD 1999 Lah.516. It is always the perversity and arbitrariness of the discretion that causes for the interference of this Court. If a discretion has been exercised in accordance with the settled principles of law for promoting the ends 'of justice it necessarily connotes an act of judicial character which is fair and just exercise of judgment. I am of the view that the Court below has exercised its discretion according to rules and reasons which is not vague, arbitrary or fanciful, thus, does not warrant any interference by this Court. According to the facts and circumstances of the case listed above question of participation of the accused‑respondent in the crime as alleged‑by the. prosecution is a question to be resolved by the trial Court and the observations made above are purely for the purpose of the bail which shall not prejudice the case of the either party. The sum and substance of the above discussion is that I see no force in this petition which is hereby dismissed. Consequently, the order of bail is maintained. H.B.T./94/Sh.C.(AJ&K)