1995 PCr (PLP)

MUHAMMAD YUNUS SURAKHVI, J.

The above-titled criminal appeal is directed against the order of Shariat Court, dated 16-6-1994, whereby the bail plea of appellants herein was refused. Precisely the facts of the case are that on 8th February, 1994, on the report of one Muhammad Qayyum, complainant, a case under sections 341, 427 and 34, A.P.C. read with section 17(3) of Offences Against Property (Enforcement of Hudood) Act, 1985, was registered at Police Chowki Rawalakot City stating therein that he was the owner and driver of Hiace Wagon No.4896-RIR and Shahzad Khan son of Muhammad Afsar Khan was Conductor of the same. He was plying the Wagon from Rawalpindi to Rawalakot via Khaigala. On 8th February, 1994, at 7-30 p.m., the complainant came from Rawalpindi alongwith passengers out of whom 4 were dropped in Pag Bazar and two at Thorar Bazar. At about 11-45 at night when he reached Topa Bazar he found the road blocked by stones. In the meantime 7 persons with masked faces armed with fire-arms surrounded the vehicle. One of them fired in the air with .303 rifle whereas others broke the window glasses of the Wagon. They snatched away Rs.5,600 from the complainant, Rs.30 from Muhammad Fazal, Rs.1,000 from Riaz Anwar, Rs 950 from Tanveer Akhtar, 8.900 from Muhammad Sajjad and Rs.600 from Muhammad Shafique, passengers. After necessary investigation by the concerned police, the accused appellants alongwith three co-accused namely Imtiaz alias Boota, Waqar alias Goodo and Zulfiqar were challenged before the District Criminal Court Poonch/Rawalakot for facing their trial under sections 341, 427, 34, A.P.C. read with section 20 of the Offences Against Property (Enforcement of Hudood) Act, 1985. Out of aforesaid 5 accused Zulfiqar accused is absconding while the others are facing their trial. The accused-appellants, herein, moved application before the District Criminal Court, Poonch/Rawalakot on 20th March 1994, for their release on bail which was rejected by its order, dated. 12-4-1994 inter alia on the grounds: (i) that the accused are prima facie connected with the offences alleged to have been committed by them; (ii) that at their instance the weapons used in the commission of offence have been recovered; (iii) that at the instance of Mushtaq accused one wallet has been recovered which has been identified by Tanveer Akhtar, its owner, in presence of marginal witnesses; (iv) that at the instance of both the accused currency notes have been recovered; (v) that even if the offence under section 17(3), E.HA. is prima facie not attracted, the accused can be proceeded under section 20 of the aforesaid Act, the punishment of which is 10 years as provided in the Penal Code and as such the case of the appellants is covered by proviso of section 497; and (vi) that the offence being heinous the appellants are not entitled to the concession of bail. After the rejection of bail by the trial Court the appellants filed an appeal before the Shariat Court, which also dismissed the same vide its order, dated 16-6-1994. The learned Judge in the Shariat Court did not advance any reason of his own for the refusal of prayer of bail of the accused-appellants except that he concurred with the reasons advanced by the trial Court. It was simply opined by the learned Judge that -the grounds refusing bail plea of the appellants by the trial Court are quite weighty and the accused-appellants are prima facie connected with the offences alleged to have been committed by them and that the punishment provided is 10 years, as such their case is covered by the proviso of section 497, Cr.P.C. The learned Judge in the Shariat Court also imposed restrictions on the renewal of bail prayer of the appellants stating in his order that after recording the evidence of P.Ws. Muhammad Mushtaq, (complainant) Shahzad Khan, Conductor, Muhammad Fazal Khan, Riaz Anwar and Sajid Awan, appellants may repeat their bail prayer. The learned counsel for the appellants Sardar Muhammad Nawaz Khan, contended that the accused-appellants are not connected with the commission of offences alleged to have been committed by them. The occurrence took place at night and the P.Ws. could not identify the accused as their faces were masked. No, identification parade was conducted by the police as such the identity of the accused becomes doubtful. The recovery of currency notes of Rs.2,000 after about a month of occurrence and .12 bore gun from Zahid Paris accused is of no help to the prosecution; as no identification mark is 4vailable on the currency notes or the rifle. He further maintained that the recovery of Rs.100 during his personal search and a wallet on the pointation of Mushtaq accused, particular when the same has not been identified by its owner, namely Tanveer Akhter nor his supplementary statement was recorded in this regard, do not connect the accused with the offence. He criticised that such a recovery is no recovery in the eyes of law. The learned counsel emphasised that the discretion exercised by the Courts below is violative of the principles governing the bail matters and the restriction imposed by the Shariat Court on the renewal of the bail prayer of the appellants is unreasonable and harsh in the circumstances of the case. On the aforesaid premises the learned counsel prayed for the release of the accused-appellants on bail. On the other hand the learned Advocate-General vehemently opposed the plea of bail on the ground that the appellants are prima facie clearly connected' with the commission of offences which are grave and serious in nature. The recovery of .12 bore gun, Chhuri, currency notes and a wallet on the pointation of the accused-appellants clearly connect them with the commission of offences alleged against them. He also maintained that deeper appreciation or appraisal of evidence at the stage of bail is not permissible. He maintained that the orders refusing the bail prayer of the appellants are in accordance with law and hence open to no exception. We have heard the respective contentions of the learned counsel for the parties and perused the record made available with care including the police diaries. At the very outset it may be pointed out that at 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 the Courts are not expected to make A 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, CK.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. In the instant case the eye-witnesses of the occurrence do not disclose the identity of the accused persons. The occurrence is admittedly of night. The persons who committed robbery/extortion had masked their faces. Prima facie in such circumstances the identity of the accused-persons becomes doubtful. The recovery of 12 bore gun about a month after the occurrence and the recovery of currency notes of Rs.2,000 at the instance of Zahid Paris accused without having any identification mark on them or without being identified by Mushtaq, complainant, from whom the money was snatched, the recovery of B Chhuri, recovery of Rs.100 during his personal search and the recovery of a Wallet from Mushtaq Ahmed accused belonging to P.W. Tanveer Akhtar in presence of marginal witnesses without being identified by Tanveer Ahmed resident of Talla Gang, its owner, and without having recorded his supplementary statement by the Investigating Officer with regard to the identity of the wallet and without his mentioning any detail of the currency notes in his statement recorded on 9-2-1994 under section 161, Cr.P.C. are the circumstances to be properly appreciated and resolved by the trial Court at the conclusion of the trial and after recording evidence in the case. In our view at this stage it cannot be said that reasonable grounds exist to connect the accused with the commission of offence punishable with death or life imprisonment. It transpires from the record that for the existence of reasonable grounds further inquiry is needed, thereby entitling the appellants to be released on bail. Whether the recovery procured by the police from the accused is in accordance with the provisions of section 27 of the old Evidence Act or Article 40 of the Qanun-e--Shahadat is a matter, which is left open to be determined by the trial Court after the recording of the evidence and the conclusion of the trial. We refrain from making any observation at this stage as it is likely to prejudice the case of either the prosecution or the defence. So far as the heinousness or gravity of the offence is concerned we are not oblivious of that aspect of the case but at the same time heinousness per se is no ground for the refusal of bail. Although this is one of the factors coupled with prima facie involvement of the accused with the commission of offence to be taken into consideration for deciding bail matters but not the only factor. Therefore, on the mere ground of heinousness of offence or its gravity, the concession of bail cannot be refused to the accused-appellants. For the aforestated reasons the case of the accused-appellants is fully covered by section 497(2), Cr.P.C. and they are entitled to the concession of bail. Accordingly we accept the appeal filed by the appellants and quash the orders of Shariat Court, dated 16-6-1994 and that of the District Criminal Court, Poonch/Rawalakot, dated 12-4-1994 and order that the appellants Zahid Paris and Mushtaq Hussain shall be released forthwith provided they furnish bail bonds in the sum of Rs.50,000 each with one surety in the same, amount alongwith their personal bonds of the like amount if not wanted in any other case or offence to the satisfaction of any Magistrate 1st Class Rawalakot. The District Criminal Court, Poonch/Rawalakot shall be informed of this order, which shall intimate the same to the appellants in judicial lock-up, Rawalakot. N.H. Q./48/SrA Bail granted.