2022 P Cr (PLP)

RAJA SAEED AKRAM KHAN, C.J.

Through the titled revision petition, the accused-petitioner has challenged the judgment/order of the Shariat Appellate Bench of the High Court (High Court) dated 16.10.2020, whereby the revision petition filed by the petitioner, herein, for grant of bail, has been dismissed.

2. The summary of facts, necessary for disposal of this revision petition is that on the report lodged by the complainant-respondent No.2, herein, a case in the offences under sections 34, 302 and 452, APC, read with section 20 of the Offences Against Property (Enforcement of Hudood) Act, 1985 was registered at Police Station Kahori on 02.01.2019. The FIR was registered against unknown persons; during the course of investigation the police apprehended the accused-petitioner and after completion of investigation pre-arrested the challan against the petitioner and two others in the Court of competent jurisdiction. The accused-petitioner moved an application for grant of bail after arrest in the trial Court which was rejected and against the judgment/order of the trial Court, he filed a revision petition before the High Court which met the same fate through the impugned judgment, hence, this revision petition.

3. Ch. Shoukat Aziz, Advocate, the learned counsel for the accused-petitioner argued that the impugned judgment is based on non-appreciation of the record which is not sustainable in the eye of law. He contended that initially the case was registered against unknown persons and later on, the petitioner has falsely been implicated in the case on the statement of co-accused. He added that the petitioner is the neighbour of the complainant and astonishingly during the identification parade, the complainant disclosed that the petitioner is the person who committed the offence. He maintained that the Courts below failed to appreciate that the statements of the star-witnesses are not in consonance with the prosecution story. He further added that the petitioner is behind the bars for more than two years and there is no positive progress in the trial and under law no one can be kept in jail for an indefinite period. He further added that according to the stance taken by the other side, the deceased borrowed some amount from the accused and when he failed to repay the same then the accused killed him which is not appealing in nature. He forcefully contended that all these aspects make the case one of further inquiry but the Courts below did not consider the same in a legal manner. He further added that although, challan has been presented in the Court of competent jurisdiction but despite elapse of more than two years period only the statements of few witnesses have been recorded; therefore, keeping the accused behind the bars will amount to punish him without proper trial which is not warranted under law.

4. On the other hand, Raja Ayaz Ahmed, Assistant Advocate-General, strongly controverted the arguments advanced by the learned counsel for the accused-petitioner while submitting that the accused-petitioner is fully involved in the commission of offence. He contended that no enmity on the para of the complainant has been brought on record to show that the accused has falsely been implicated. The recovery of weapon of offence on the pointation of the accused corroborates the prosecution story. He submitted that the Courts below after due application of judicial mind refused to grant the concession of bail to the accused and the interference in the orders passed by the Courts below is not warranted under law.

5. We have heard the arguments and gone through the record made available along with the impugned judgment. The perusal of the record shows that initially no one was nominated in the FIR, moreover, in the statements recorded under section 161, Cr.P.C., on the very next day of the occurrence, the complainant and others again shown unawareness regarding the involvement of anyone in the commission of offence. Later on, when the police arrested the accused-petitioner, the complainant and others identified that he is the person who murdered Roshan Deen (deceased). The learned counsel for the petitioner during the course of arguments drew the attention of the Court towards different portions of the statements of the star-prosecution witnesses submitted that they have admitted in their statements that the accused-petitioner is their neighbour; thus; his nomination as accused, after lapse of considerable time, during identification parade, makes the case one of further inquiry. This argument prima facie has substance. The petitioner is behind the bars for more than two years but yet the statements of 18 witnesses are required to be recorded. It may be observed here that no one can be kept behind the bars for an indefinite period as ultimately if the case is proved against him, then he will be convicted but if he is acquitted of the charge then he cannot be compensated for the agony he suffered during the period spent behind the bars. We also deem it proper to observe here that if from the tentative assessment of the material brought on record, it can be ascertained that the accused has committed an offence punishable with death or transportation for life, then of course, the concession of bail shall not be extended to him but if from the entire evidence the Court reaches the conclusion that the occurrence yet requires further inquiry, then the accused shall be released on bail. In this regard, reference may be made to a case reported as Jahangir Khan and another v. Tanveer Hussain Shah and 4 others [2015 SCR 1349], wherein, the allegation of murder was levelled against the accused and this Court while granting him the concession of bail observed that: - "

16. According to statutory provisions and principle of administration of criminal justice, especially, the factors to be considered for grant of bail the question of further inquiry is always given due importance and if it appears from the tentative assessment of the material of the case that the matter requires further inquiry regarding establishment of the commission of offence against the accused, the concession of bail can be extended to them. On this subject there is chain of authorities including one reported as Ghulam Abbasi alias Hussain and another v. The State and others [2013 PCr.LJ 66] wherein the scope of further inquiry has been discussed." Under law, for bringing a case in the ambit of further inquiry, there must be some evidence, which on the tentative assessment, may create a reservation in respect of the involvement of accused in the commission of offence, whereas, in the instant matter despite the fact that the accused being a neighbour was already known to the complainant but he did not nominate him in the FIR as well as in the initial statement recorded under section 161, Cr.P.C. and after a considerable period identify him during the identification parade as accused, which prima facie is a valid ground to bring the case in the ambit of further inquiry. Therefore, in the light of the principle of law discussed in the referred pronouncement, we hold that the accused is entitled to be released on bail. The learned Assistant Advocate-General during the course of arguments stressed that the trial is in progress, therefore, instead of grant of bail a direction for expeditious disposal of the main case is justified. This argument is alien to law as mere on the ground that the trial is in progress or near to completion, the bail cannot be withheld if from the tentative assessment of the material available on record the case of further inquiry is made out.

6. For the forgoing reasons, the accused-petitioner is granted bail. He shall be released forthwith if not required in any other case, subject to furnishing a bail bond in the sum of Rs.100,0000/- consisting of two sureties as well as personal bond in the like amount to the satisfaction of the trial Court. The observations made hereinabove are confined only to the bail of the accused-petitioner. The trial Court shall decide the main case in accordance with law without being uninfluenced by whatever is observed in the instant order. SA/23/SC(AJ&K) Bail granted.